AMENDMENT  TO  PURE-FOOD  LAW 


HEARING 


BEFORE  THE 

COMMITTEE  ON  MANUFACTURES 
UNITED  STATES  SENATE 

SIXTY-SECOND  CONGRESS 

SECOND  SESSION 

ON 

S.  4727 

A BILL  TO  AMEND  SECTION  8 OF  AN  ACT  ENTITLED  “AN  ACT  FOR 
PREVENTING  THE  MANUFACTURE,  SALE,  OR  TRANSPORTATION 
OF  ADULTERATED  OR  MISBRANDED  OR  POISONOUS  OR 
DELETERIOUS  FOODS,  DRUGS,  MEDICINES,  AND 
LIQUORS,  AND  FOR  REGULATING  TRAFFIC 
THEREIN,  AND  FOR  OTHER  PURPOSES,” 

APPROVED  JUNE  30,  1906 


FEBRUARY  29,  1912 


Printed  for  the  use  of  the  Committee  on  Manufactures 


W\>y  \)  i 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 
1912 


COMMITTEE  ON  MANUFACTURES. 


United  States  Senate. 
WELDON  B.  HEYBURN.  Idaho.  Chairman. 


GEORGE  T.  OLIVER,  Pennsylvania. 
WILLIAM  LORIMER,  Illinois. 

ROBERT  M.  LA  FOLLETTE,  Wisconsin. 
ALBERT  B.  CUMMINS,  Iowa. 

GEORGE  P.  McLEAN,  Connecticut. 


ELLISON  D.  SMITH,  South  Carolina. 
JAMES  A.  REED,  Missouri. 

ATLEE  POMERENE,  Ohio. 

JAMES  A.  O’GORMAN,  New  York. 
HOKE  SMITH,  Georgia. 


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Addison  T.  Smith,  Idaho,  Clerk. 


tVA:-3 


AMENDMENT  TO  PIJRE-EOOD  LAW. 


t 

THURSDAY,  FEBRUARY  29,  1912. 


Committee  on  Manufactures, 
United  States  Senate, 

W ashington,  D.  G. 

The  committee  met  at  10.30  a.  m.  and  took  up  for  consideration 
the  bill  S.  4727,  as  follows : 


[S.  4727,  Sixty-second  Congress,  second  session.] 


A BILL  To  amend  section  eight  of  an  act  entitled  “An  act  for  preventing  the  manu- 
facture, sale,  or  transportation  of  adulterated  or  misbranded  or  poisonous  or  dele- 
terious foods,  drugs,  medicines,  and  liquors,  and  for  regulating  traffic  therein,  and  for 
other  purposes,”  approved  June,  thirtieth,  nineteen  hundred  and  six 


Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  Urfited 
States  of  America  in  Congress  assembled,  That  section  eight  of  an  act  entitled 
“An  act  for  preventing  the  manufacture,  sale,  or  transportation  of  adulterated 
or  misbranded  or  poisonous  or  deleterious  foods,  drugs,  medicines,  and  liquors, 
and  for  regulating  traffic  therein,  and  for  other  purposes,”  approved  June 
thirtieth,  nineteen  hundred  and  six,  be,  and  the  same  is  hereby,  amended  by 
striking  out  the  words  “Third.  If  in  package  form,  and  the  contents  are 
stated  in  terms  of  weight  or  measure,  they  are  not  plainly  and  correctly 
stated  on  the  outside  of  the  package,”  and  inserting  in  lieu  thereof  the  fol- 
lowing : 

“ Third.  If  in  package  form,  the  quantity  of  the  contents  be  not  plainly  and 
conspicuously  marked  on  the  outside  of  the  package  in  terms  of  weight,  meas- 
ure, or  numerical  count : Provided,  however,  That  reasonable  variations  shall 
be  permitted;  and  tolerances  shall  be  established  by  rules  and  regulations 
made  in  accordance  with  the  provisions  of  this  act.” 

Sec.  2.  That  this  act  shall  take  effect  and  be  in  force  from  and  after  its 
passage:  Provided,  however,  That  no  penalty  of  fine,  imprisonment,  or  con- 
fiscation shall  be  enforced  for  any  violation  of  its  provisions  as  to  domestic 
products  prepared  or  foreign  products  imported  prior  to  eighteen  months  after 
its  passage. 

Messrs.  Dana  T.  Ackerly,  of  New  York  City,  of  Breed,  Abbott 
& Morgan,  counsel  for  the  National  Wholesale  Grocers’  Association; 
John  A.  Green,  secretary  National  Association  of  Retail  Grocers, 
Cleveland,  Ohio;  and  Alfred  H.  Beckmann,  secretary  National 
Wholesale  Grocers’  Association  of  the  United  States,  addressed  the 
committee. 

The  Chairman.  Gentlemen,  I understand  that  your  amendment 
is  practically  contained  in  the  proviso  commencing  on  line  6,  page 
2,  as  follows: 

Provided,  however,  That  reasonable  variations  shall  be  permitted,  and  tol- 
erances shall  be  established  by  rules  and  regulations  made  in  accordance  with 
the  provisions  of  this  act. 

Mr.  Beckmann.  The  present  law  does  not  formally  permit  that; 
so  the  amendment  really  begins  on  line  2. 


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AMENDMENT  TO  PUKE-FOOD  LAW. 


The  Chairman.  I understand;  but  the  crux  of  your  objection  is 
that  you  want  some  latitude,  or  tolerance,  or  something  of  that 
kind/  I will  hear  you.  Do  you  desire  to  make  your  statement 
informally  or  under  oath. 

Mr.  Ackerly.  Informally. 

STATEMENT  OF  DANA  T.  ACKERLY,  OF  NEW  YORK  CITY,  OF 
BREED,  ABBOTT  & MORGAN,  COUNSEL  FOR  THE  NATIONAL 
WHOLESALE  GROCERS’  ASSOCIATION. 

The  Chairman.  Where  do  you  reside? 

Mr.  Ackerly.  In  New  York  City. 

The  Chairman.  What  is  your  business? 

Mr.  Ackerly.  Attorney. 

The  Chairman.  Do  you  appear  here  as  attorney?  , 

Mr.  Ackerly.  Yes,  sir;  for  the  National  Wholesale  Grocers 

The  Chairman.  Are  you  from  the  association  that  had  its  meet- 
ing at  Atlantic  City  two  or  three  years  ago? 

Mr.  Ackerly.  Three  years  ago.  , . t>  • 

The  Chairman.  In  which  you  passed  resolutions  thanking  1 resi- 
dent Roosevelt  for  having  prepared  and  enacted  the  pure  food  bill . 
Mr.  Ackerly.  For  having  signed  the  bill. 

The  Chairman.  That  was  the  organization? 

Mr.  Ackerly.  This  association  had  its  first  meeting  at  Buflalo„ 
N Y.,  in  1906,  and  their  first  act  was  a telegram  asking  tor  the 
passage  of  this  law.  That  was  the  first  thing  they  did  after  adopt- 
ing their  constitution. 

The  Chairman.  What  year  was  that? 

Mr.  Ackerly.  1906. 

The  Chairman.  To  whom  did  you  telegraph  ? 

Mr.  Beckmann.  The  Speaker  of  the  House.  . . 

The  Chairman.  I merely  wanted  to  identify  your  association. 

Now  vou  may  state  what  you  desire  regarding  this  bill. 

Mr  Ackerly.  We  conceive,  Mr.  Chairman,  that  this  raises  a very 
simple  issue  on  the  one  question  of  a compulsory  weight  or  measure 
branding  law,  Congress  having  already  passed  upon  the  policy  ofthe 
food  law  covering  interstate  shipments  for  the  entire  country,  ine 
association’s  endeavor  has  been  for  the  last  few  years  to  get  the  entire 
business  in  foods  upon  a net- weight  basis.  We  haJe  keen  endeavor- 
ing, with  more  or  less  success,  to  have  manufacturers  bill land  ship  to 
ns  net  Various  large  producing  interests  have  recently  acceded  to 
our  request  and  instfad  of  including  the  container  in  the  billing  they 
ship  net  and  charge  net,  and  the  National  Wholesale  Grocers  Asso- 
ciation recommends  to  its  members  and  they  do  now  sell  those  pro 

UCThere  have  been  a great  many  changes  to  the  net-weight  basiyn 
the  last  year  and  a half,  during  which  time  perhaps  a halt  or  two 
thirds  of  the  manufacturers  who  were  previously  billing  gross  and 
selling  gross  have  now  adopted  the  policy  through  their  associations, 
or ^individual  companies,  of  selling  on  the  net-weight  basis 

We  do  not  pose  as  altruists  here.  We  very  frankly  admit  that  we 
do  not  see  the  absolute  necessity  of  such  a measure  on  package  goods, 
but  there  can  be  no  denial  of  the  existing  public  demand  for  it.  It 


AMENDMENT  TO  PURE-FOOD  LAW. 


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has  been  adopted  in  some  seven  States,  and,  frankly,  in  addition  to 
our  desire  to  have  the  business  put  on  a net- weight  basis  throughout, 
both  bulk  and  package  goods,  we  wish  to  admit  that  the  fact  of  the 
existing  diversity  in  the  various  State  laws — which  in  some  instances 
would  require  different  labels  for  different  States — has  been  one  of 
our  reasons  for  favoring  Senator  Burton’s  bill  and  Congressman 
Mann’s,  and  later  Mr.  Stevens’s  bill  requiring  compulsory  weight  or 
measure  branding  instead  of  the  present  permissive  provision  of 
subdivision  3 of  section  8 of  the  act. 

The  States  that  have  already  enacted  compulsory  weight  or  meas- 
ure branding  laws  are:  Connecticut,  whose  law  goes  into  effect  Janu- 
ary 11,  1913;  Nebraska,  South  Dakota,  North  Dakota,  Florida, 
Nevada,  and  Wyoming.  And  those  States 

The  Chairman.  I understand  you  to  say  that  those  are  the  States 
you  enumerate  that  require  weight  branding? 

Mr.  Ackerly.  The  compulsory  branding  of  the  weight  or  measure 
upon  all  packages  of  food.  Now,  of  those  States,  some,  including 
Wy  oming  and  Connecticut,  have  provided  that  reasonable  varia- 
tions shall  be  permitted.  In  Nevada  the  legislature,  in  enacting  this 
law,  went  into  some  detail  as  to  variations  and  attempted  to  specify 
them. 

The  Chairman.  Suppose  you  incorporate  in  the  record  the  provi- 
sion that  you  refer  to.  Otherwise  it  will  be  necessary  to  go  outside 
of  the  record  of  this  hearing  to  get  it. 

Mr.  Ackerly.  I will  do  so.  Nevada,  section  18  of  the  act  of  1911, 
taking  effect  June  1,  1911,  provides  for  compulsory  weight  or  meas- 
ure branding,  and  in  section  21  we  find  this: 

There  shall  be  taken  into  consideration  the  usual  and  ordinary  leakage, 
evaporation,  or  waste  there  may  be  from  the  time  the  package  or  container  is 
filled  by  the  vendor  until  he  sells  the  same.  A slight  variation  from  the  stated 
weight,  measure,  or  quantity  of  the  individual  package  is  permissible,  provided 
the  variation  is  as  often  above  as  below  the  weight,  measure,  or  quantity. 

Now,  it  should  be  noted  here  that  the  legislature  has  included 
leakage.  We  do  not  wish  to  ask  that  that  be  allowed  by  Congress. 
The  provision  for  leakage  we  do  not  consider  a reasonable  variation, 
because  the  manufacturer  who  prepares  the  goods  is  the  one  who  has 
the  last  chance  to  avoid  it,  and  he  should  prepare  a package  that  will 
not  leak.  That  loss  is  not  an  operation  of  nature  or  a matter  that 
we  conceive  may  be  properly  allowed,  and  so  in  considering  this  bill 
with  various  weight  and  measure  officials,  and  with  Congressman 
Mann,  who  originally  drew  it  as  the  bill  29866,  House  bill  of  the 
Sixty-first  Congress,  they  finally  reached  the  conclusion  that  pro- 
visions in  the  statute  covering  the  hundreds  of  possible  variations 
with  respect  to  the  thousands  of  products  that  are  marketed  would 
be  impracticable. 

The  Chairman.  Why  would  it  be  impracticable  to  label  the  pack- 
age with  the  weight  of  the  contents  or  measure? 

Mr.  Ackerly.  On  that  we  have  first  to  meet  this  situation : All  of 
our  members  and,  I suppose,  60  or  75  per  cent  of  the  manufacturers 
of  the  country  are  shipping  to  at  least  two  States,  and  many  of  them 
to  a great  many  more.  For  example,  corn  flakes — some  shipments 
go  to  New  England,  a climate  where  the  humidity  is  very  high  and 
some  moisture  would  be  absorbed;  others  of  the  same  day’s  run  may 
very  naturally  go  to  Florida  or  Los  Angeles,  where  the  climate  is 


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AMENDMENT  TO  PURE-FOOD  LAW. 


very  dry.  Tests  that  have  been  made  during  the  time  these  laws 
have  been  considered  have  shown  variations  in  packages  that  would 
be  normally  16  ounces  of  from  13J  ounces  to  some  18  ounces. 

The  Chairman.  The  change  takes  place  after  the  package  is 
sealed  ? 

Mr.  Ackerly.  After  the  package  is  closed.  They  are  not  all 
sealed.  As  has  been  recognized  in  regulation  29  of  the  present  regu- 
lations under  the  food  and  drugs  act,  there  is  an  inevitable  variation 
due  to  the  weighing  or  measuring  or  the  filling  of  the  individual 
package.  The  human  hand  is  not  accurate  to  the  fraction  of  an 
ounce,  nor  has  any  machine  yet  been  devised  that  is  so  flawless.  It 
has  been  recognized  by  that  regulation  that  a variation  or  tolerance, 
or  whatever  word  may  be  used  to  cover  the  situation,  must  be  granted 
in  some  form  or  other. 

Senator  Pomerene.  Experiments  would  show,  then,  a variation 
of  about  25  per  cent  in  weight. 

Mr.  Ackerly.  From  13 J ounces  to  some  18  ounces  on  some  prod- 
ucts. A better  example,  and  one  that,  it  seems  to  me,  would  carry 
conviction  more  quickly,  is  the  package  of  fish.  Sardines  can  not  be 
all  the  same  size.  The  boxes  are  standard  size  and  some  will  contain 
a number  of  fish  and  some  fewer  by  but  one ; the  interstices  are  filled 
with  an  oil  or  liquid  that  does  not  weigh  the  same  as  the  fish. 

Now,  whatever  we  might  calculate  as  to  the  average  run  as  being, 
a certain  normal  amount,  the  fact  is  evident  from  tests  made  in  the 
canning  factories  that  the  variation  will  run  from  3 to  4 ounces  on 
a normally  5 or  6 ounce  package  up  to  8 or  9. 

Senator  Pomerene.  You  are  now  speaking  of  the  variations  due 
to  the  different  amounts  of  oil  and  fish  that  there  may  be  in  the 
package,  but  when  you  gave  the  variation  as  being  from  i3  to  a frac- 
tion ounces  to  18  ounces  in  a package  which  is  supposed  to  contain 
16  ounces,  you  were  speaking  with  reference  to  the  humidity  of  the 
atmosphere  ? 

Mr.  Ackerly.  An  entirely  different  cause.  ' 

Senator  Pomerene.  Would  it  amount  to  so  much  change  as  that? 

Mr.  Ackerly.  It  would  not  always;  but  tests  made  that  were 
presented  before  the  Committee  of  the  House  for  the  District  of 
Columbia,  that  considered  such  a bill  in  the  House,  actually  showed 
that  those  variations  existed  where  the  weighing  tests  were  made. 

The  manufacturer  is  confronted  with  an  almost  insuperable  diffi- 
culty if  he  is  obliged  to  pack  his  product  one  way  or  of  one  weight 
for  shipment  to  the  dry  southern  climate  and  in  another  way  for  the 
New  England  climate  or  the  Seattle  climate,  or  other  places  where 
the  humidity  will  affect  it.  Conversely,  the  dry  atmosphere  would 
affect  the  shipment  to  the  Southwest. 

The  Chairman.  Have  you  incorporated  butter  and  such  commodi- 
ties as  that  in  the  scope  of  your  objection? 

Mr.  Ackerly.  Our  provision  would  cover  all  foods  that  the  food 
law  covers,  including  both 

The  Chairman.  I meant  whether  you  were  representing  that 
feature  ? 

Mr.  Ackerly.  Oh,  no;  we  are  representing  only  the  wholesale 
trade. 

The  Chairman.  The  wholesale  trade  in  butter — would  you  repre- 
sent that? 


AMENDMENT  TO  PURE-FOOD  LAW. 


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Mr.  Ackerly.  No,  sir;  we  do  not. 

The  Chairman.  It  is  not  within  the  scope  of  your  objections? 
That  is  what  I wanted  to  get  at.  There  are  some  recent  decisions 
with  regard  to  that,  and  I merely  wanted  to  have  the  benefit  of  their 
application  in  case  it  was  included  within  your  request. 

Mr.  Ackerly.  The  bill  has  been  favored  as  recently  as  February 
16,  1912,  by  the  State  and  National  weights  and  measures  officials 
themselves,  who  met  in  AVashington  and  adopted  this  resolution: 

COMPULSORY  WEIGHT  AND  MEASURE  BRANDING. 

Be  it  resolved,  That  the  Seventh  Annual  Conference  of  the  Weight  and 
Measure  Officials  of  the  United  States,  held  February  16,  1912,  at  Washington, 
D.  C.,  favors  and  respectfully  urges  the  prompt  enactment  of  such  legislation 
requiring  the  marking  of  the  contents  on  the  outside  of  containers  and  pre- 
scribing the  manner  of  sales  of  commodities  within  equitable  and  reasonable 
limits.  As  one  form  of  such  bill,  we  indorse  Senate  bill  4727,  introduced  by 
Senator  Burton  of  Ohio,  aud  House  bill  4667,  introduced  by  Congressman 
Stevens  of . Minnesota. 

F.  Reichmann, 

J.  Q.  Emery, 

J.  P.  Buckley, 
Resolutions  Committee. 

The  members  of  the  resolutions  committee  that  recommended  this 
resolution,  which  was  passed  by  the  conference,  were  Dr.  F.  Reich- 
mann, chairman,  who  is  the  superintendent  of  weights  and  measures 
of  the  State  of  New  York;  Mr.  J.  Q.  Emery,  of  AVisconsin,  who  is 
the  dairy  and  food  commissioner  of  that  State;  and  J.  P.  Buckley, 
who  is  also  a weight  and  measure  official. 

On  December  2,  1910,  the  Association  of  State  and  National  Food 
and  Dairy  Departments,  comprising  the  food-control  commissioners, 
not  only  of  the  Federal  Government,  but  of  all  the  States,  adopted  a 
resolution  in  their  annual  convention  at  New  Orleans  which  did 
not  approve  in  form  any  bill.  But  as  I read  its  terms  I think  you 
will  appreciate  that  it  would  certainly  cover  the  principle  of  this 
bill  in  substantially  its  present  form.  The  resolution  was  as  follows : 

RESOLUTION  ON  WEIGHT  OR  MEASURE  BRANDING  ADOPTED  BY  NEW  ORLEANS  CON- 
VENTION, ASSOCIATION  OF  STATE  AND  NATIONAL  FOOD  AND  DAIRY  DEPARTMENTS. 

Resolved,  That  this  association  favors  the  enactment  by  Congress  and  the 
various  States  of  a weight  or  measure  branding  law;  and  that  any  such 
lawT  be  so  framed  as  to  make  fair  and  reasonable  allowance  for  the  inevitable 
variations  of  weight  or  measure  due  to  shrinkage,  evaporation,  or  other  natural 
causes,  and  the  unavoidable  slight  variations  attendant  upon  the  weighing  or 
measuring  of  individual  packages;  and  that  the  interests  of  consumers,  manu- 
facturers, and  dealers  alike  demand  that  weight  and  measure  laws,  like  all 
food  laws,  should  be  uniform. 

Now,  T do  not  wish  to  introduce  at  length  here  the  testimony 
taken  at  the  hearing  on  this  same  bill  in  February,  1911,  in  the 
House,  H.  R.  29866,  which  is  the  same  as  the  Burton  bill,  S.  4727, 
but  I wish  to  refer  simply  to  the  committee’s  unanimous  report  made 

by  Mr.  Stevens. 

Senator  Pomerene.  In  the  House? 

Mr.  Ackerly.  In  the  House,  the  Committee  on  Interstate  and 
Foreign  Commerce.  That  is  known  as  House  Calendar  No.  382, 
Report  No.  2082.  The  bill  is  set  forth  there  and  it  will  be  apparent 
that  it  is  the  same  as  the  Burton  bill.  On  page  3 we  find  a list 


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AMENDMENT  TO  PURE-FOOD  LAW. 


of  a large  number  of  people  in  various  interests  that  appeared  at  that 
hearing  and  I request  that  their  names  be  taken  in  here. 

The  list  referred  to  is  as  follows: 

The  hearings  before  your  committee  show  that  the  bill  as  reported  has  the 
approval  of  the  Departments  of  Agriculture  and  Commerce  and  Labor  and  the 
Treasury  Department,  which  three  departments  are  concerned  with  the  enforce- 
ment of  the  pure-food  law,  including  the  indorsement  of  the  Bureau  of  Chem- 
istry and  the  Bureau  of  Standards.  It  also  has  the  indorsement  of  the  National 
Retail  Grocers’  Association,  the  National  Wholesale  Grocers’  Association,  the 
National  Canners’  Association,  the  National  Confectioners’  Association,  the 
American  Specialty  Manufacturers’  Association,  the  Chocolate  and  Cocoa  Manu- 
facturers’ Association  of  the  United  States,  the  National  Flavoring  Extract 
Association,  the  California  Fruit  Growers’  Association,  the  Machine  Bottle 
Manufacturers’  Association,  the  Glass  Bottle  Blowers’  Association,  the  Asso- 
ciation for  the  Promotion  of  Purity  in  Foods,  the  International  Stewards  Asso- 
ciation, the  Southern  Hotel  Men’s  Association,  the  Canners’  League  of  Cali- 
fornia, the  Dried  Fruit  Association  of  California,  the  Association  of  National 
and  State  Dairy  and  Food  Departments,  the  National  Consumers’  League 
food  committee,  the  American  Flint  Glass  Worers’  Union  of  the  United  States 
and  Canada,  and  various  other  associations,  officials,  and  individuals,  who 
have  given  special  attention  to  the  subject. 

Your  committee  distributed  several  thousand  copies  of  the  bill  throughout 
the  United  States  through  the  officials  of  various  national  associations  inter- 
ested in  the  subject. 

At  the  hearings  before  your  committee,  notice  of  which  was  widely  circulated 
in  advance,  there  appeared,  among  others,  the  following  persons : 

Daniel  C.  Palmer,  commissioner  of  weights  and  measures,  Boston,  Mass. ; 
John  L.  Walsh,  commissioner  of  weights  and  measures,  New  York  City ; F. 
Reichmann,  superintendent  of  weights  and  measures,  State  of  New  York,  Al- 
bany, N.  Y. ; Thomas  Garrett,  secretary  Franco-American  Food  Co.,  Jersey 
City  Heights,  N.  J. ; John  A.  Green,  secretary  National  Association  Retail 
Grocers  of  United  States,  Cleveland,  Ohio;  Frank  E.  Gorrell,  secretary  and 
treasurer  National  Canners’  Association,  Bel  Air,  Md. ; S.  A.  Williams,  general 
counsel  National  Canners’  Association,  Bel  Air,  Md. ; S.  A.  Williams,  general 
counsel  National  Tanners’  Association,  Bel  Air,  Md. ; J.  D.  Miller,  representing 
Merchants’  Exchange,  Chicago,  111. ; R.  A.  McCormick,  Baltimore,  Md. ; A.  L. 
Squiers,  counsel  for  Flavoring  Extract  Manufacturing  Association,  New  York 
City ; Hon.  Joseph  Bensinger,  chairman  executive  committee  Pennsylvania 
State  Hotel  Association ; W.  C.  Breed,  counsel  National  Wholesale  Grocers’ 
Association,  New  York  City;  L.  Fred  Ivlooz,  president  International  Stewards' 
Association,  Pittsburgh,  Pa. ; C.  E.  M.  Newton,  representing  Merchants’  Ex- 
change, Chicago,  111. ; Andrew  Weisburg,  Pittsburgh  branch  of  International 
Stewards’  Association,  Pittsburgh,  Pa. ; Mr.  Uetz,  Pittsburgh  branch  of  Inter- 
national Stewards’  Association,  Pittsburgh,  Pa.;  Will  Y.  Zimmer,  representing 
Georgia  State  Hotel  Association,  Atlanta,  Ga. ; Fred  H.  Houser,  secretary 
Southern  Hotel  Men’s  Association,  Atlanta,  Ga. ; Daniel  C.  Hurley,  Boston 
branch  International  Stewards’  Association,  Castle  Square  Hotel,  Boston, 
Mass. ; Frank  S.  Murphy,  Chicago  branch  International  Stewards’  Association, 
Great  Northern  Hotel,  Chicago,  111. ; Arthur  C.  Hoffman,  International  Stew- 
ards’ Association,  Chicago,  111. ; Torsch  Packing  Co.,  Baltimore,  Md. ; Dr.  S.  W. 
Stratton,  Bureau  Weights  and  Measures,  Washington,  D.  C. ; Mylo  E.  West- 
brooke,  representing  International  Stewards’  Association ; John  Ivjellander, 
inspector  weights  and  measures,  Chicago,  111. ; Hugh  S.  Orem,  representing 
National  Canners’  Association,  Baltimore,  Md. ; F.  A.  Applin,  representing  Can- 
ners’ League  of  California  and  Dried  Fruit  Association  of  California ; George  E. 
Flanders,  president  Association  National  and  State  Dairy  and  Food  Depart- 
ments of  State  of  New  York ; Alfred  H.  Beckmann,  secretary  National  Whole- 
sale Grocers’  Association,  New  York  City ; II.  W.  Houtz,  representing  National 
Confectioners’  Association ; Plenry  Heide.  representing  National  Confectioners’ 
Association ; Lewis  Runkel,  American  Specialty  Manufacturers’  Association ; 
Mr.  Garrett,  American  Specialty  Manufacturers’  Association;  Paul  Pierce,  rep- 
resenting Association  for  Promotion  of  Purity  in  Foods. 

Glass  manufacturers  and  workers:  A.  B.  Paxton,  secretary  of  Hazel  Atlas 
Glass  Co.,  Wheeling,  W.  Va. ; Joseph  Knoxt  president  United  States  Glass  Co., 
Pittsburgh,  Pa. ; George  Beatty,  secretary  of  Federal  Glass  Co.,  Columbus, 


AMENDMENT  TO  PURE-FOOD  LAW, 


9 


Oliio;  George  Yost,  Bellaire  Glass  Co.,  Bellaire,  Ohio;  Frank  Ferguson,  Illinois 
Glass  Co.,  Alton,  111. ; H.  L.  Heintzelman,  secretary  Monongah  Glass  Co.,  Fair- 
mont, W.  Va. ; James  Morrison,  Fidelity  Glass  Co.,  Towanda,  Pa. ; C.  J.  Yost, 
Whitney  Glass  Co.,  Glassboro,  N.  J. ; William  P.  Clarke,  secretary  and  treas- 
urer American  Fint  Glass  Workers,  Toledo,  Ohio;  William  Launer,  secretary 
Glass  Bottle  Blowers’  Association  of  United  States  and  Canada,  Philadelphia, 
Pa. ; Francis  H.  Williams,  executive  member  Glass  Bottle  Blowers’  Association 
of  United  States  and  Canada,  Baltimore,  Md. 

During  the  hearings  frequent  opportunity  was  given  to  anyone  to  be  he/ird 
ivho  might  desire  to  oppose  the  bill,  but  no  one  made  use  of  that  opportunity. 

They  included  not  only  the  trade — many  branches  of  it — but  also 
food-control  officers  and  weight  and  measure  officials.  On  page  4, 
following  the  list  of  those  names,  we  read : 

During  the  hearings  frequent  opportunity  was  given  to  anyone  to  be  heard 
who  might  desire  to  oppose  the  bill,  but  no  one  made  use  of  that  opportunity. 

Now,  it  is  a notable  fact  that  at  that  hearing  there  was  present  an 
interest  that  has  been  one  of  the  most  active  in  opposition  to  bills  of 
this  character  in  the  past;  that  is,  the  manufacturers  of  containers. 
They  agreed  that  this  bill  was — if  I may  use  the  phrase — livable; 
that  it  could  be  enforced  and  was  practical  from  the  standpoint  of 
the  trade.  On  the  other  hand,  the  weights  and  measures  officials 
and  food-control  officers  present  spoke  in  favor  of  the  bill,  indicating 
that  it  would  be  sufficient  for  the  protection  of  the  consumer. 

Among  those  present  was  Dr.  Deichmann,  of  New  York,  the  super- 
intendent of  weights  and  measures  of  that  State,  who,  so  far  as  I 
know,  unless  it  be  by  Mr.  Kjellander,  of  Chicago,  has  been  the  most 
active  in  favor  of  legislation  of  this  character.  He  has  been  one  of 
the  pioneers  in  that  field  so  far  as  New  York  State  is  concerned,  and 
he  was  the  chairman  of  the  committee  which  on  the  16th  of  this 
month  recommended  the  resolution  I have  just  read,  that  was 
adopted  at  the  seventh  annual  conference  of  the  weight  and  measure 
officials  of  the  United  States. 

Now,  we  come  to  the  point  that  I believe  you  raised,  Senator  Hey- 
burn,  and  which  has  been  raised  by  Congressman  Mann  prior  to  the 
hearing  just  mentioned,  as  to  the  propriety  or  constitutionality  of  a 
provision  in  a law  of  this  kind  that  should  allow  reasonable  vari- 
ations. 

The  Chairman.  I suggested  that  the  law  certainly  would  not  com- 
ply with  the  recognized  rule  that  a law  should  be  certain  in  its  pro- 
visions. 

. Mr.  Ackerly.  I quite  agree  with  you  that  that  is  one  of  the  most 
vital  points  to  be  considered  in  this  bill. 

The  Chairman.  The  greatest  danger  is  in  the  enactment  of  stat- 
utes that  are  not  certain. 

Senator  O’Gorman  here  appeared  in  the  room. 

The  Chairman.  Senator  O’Gorman,  we  have  been  considering  this 
bill,  Senate  bill  4727,  and  Mr.  Ackerly  is  addressing  the  committee. 
We  have  just  reached  the  point  on  page  2 of  the  bill  which  states : 

That  reasonable  variations  shall  be  permitted;  and  tolerances  shall  be  estab- 
lished by  rules  and  regulations  made  in  accordance  with  the  provisions  of 

this  act. 

Mr.  Ackerly  suggested,  or  it  has  been  suggested  here,  that  that 
provision  is  too  uncertain  in  its  terms,  and  would  not  amount  to  a 

law  at  all. 


10 


AMENDMENT  TO  PUKE-FOOD  LAW. 


Mr.  Ackerly.  I ought  to  say  first  that  upon  the  question  whether 
it  is  practicable  or  possible  as  a manufacturing  or  a packing  problem 
to  put  the  true  weight  or  measure  on  every  package  turned  out  by  a 
large  plant,  or  even  a small  establishment,  we  have  contented  our- 
selves with  the  admissions  of  weight  and  measure  officials  and  the 
food  control  officials,  as  shown  by  the  resolutions  which  I have  read 
passed  at  their  annual  meetings.  We  think  such  variations,  phrased 
in  some  language  or  other,  must  be  granted.  It  is  not  a human  pos- 
sibility to  put  upon  every  package  the  true  weight  or  measure. 

Senator  O’Gorman.  Why  not? 

Mr.  Ackerly.  The  most  prevalent  cause  of  variation  is  evapora- 
tion. * A factory,  for  instance,  of  Chicago  would  be  shipping  to  the 
dry  climate  of  southern  California,  and  to  the  climate  of  New 

Bedford.  . , _ . TJi 

Senator  O’Gorman.  You  would  not  violate  the  law,  then.  It  you 
were  attacked  with  a violation,  you  could  establish  the  fact  that  at 
Chicago  you  did  place  the  correct  weight,  and  you  would  offer  as  an 
explanation  of  the  variation  the  transportation  and  the  consequent 
effect  uptfn  the  food  product  by  the  climate. 

Mr.  Ackerly.  But  consider,  Senator,  the  difficulty  that  you  would 
place  upon  the  manufacturer  in  court  as  an  interstate  shipment.  The 
inspector,  perhaps,  has  not  found  the  sample  for  two  or  three  months  ; 
the  manufacturer  has  not  heard  of  it  for  a month  or  two  after  that, 
and  when 


Senator  O’Gorman.  He  would  have  the  same  information  that  you 
have  as  to  the  cause  that  affected  the  weight,  and  it  is  not  to  be  ex- 
pected that  a variation,  discovered  in  the  suppositious  case  that  you 
point  out,  would  induce  or  incline  the  department  to  make  any  com- 
plaint against  you.  . - . . . . , , 

Mr.  Ackerly.  The  department  case  is  complete,  is  it  not;  when 
they  have  proof  that  they  have  found  a package  shipped  interstate 
which  weighed  16  ounces'and  was  branded  18  ounces? 

The  Chairman.  It  is  only  for  the  purpose  of  recommendation. 
The  department  does  not  render  any  official  judgment  in  these  mat- 
ters. That  is  for  the  court.  . , 

Mr.  Ackerly.  Their  case  has  been  completed.  1 conceive  it  to  he 
their  duty  to  assume  that  it  is  misbranded,  because  they  certainly  can 
not  properly  assume  on  what  is  before  them  there,  that  the  manu- 
facturer was  excused  in  that  instance,  or  that  there  was  any  good 
reason.  They  must  have  him  come  before  them  at  a hearing,  or  come 
into  court  and  prove  it. 

Senator  O’Gorman.  I should  not  think  so.  . 

Mr.  Ackerly.  In  the  first  place,  they  do  not  have  to  give  him  a 


hearing  now. 


The'CHAiRMAN.  Yes,  they  do.  I do  not  want  you  to  make  any 
mistake  about  that.  They  have  to  give  him  a healing. 

Mr.  Ackerly.  In  the  case  of  the  United  States  v.  Morgan 

The  Chairman.  I know;  I have  had  a lot  of  letters  regarding 
that.  The  law  provides  that  every  man  shall  have  a hearing  in 
court.  There  is  no  official  jurisdiction  outside  of  the  court  under 

the  pure-food  law.  . 

Mr.  Ackerly.  The  hearing  is  in  court.  He  is  entitled,  as  ot  right, 

to  no  hearings  before  the  department. 


AMENDMENT  TO  PUKE-FOOD  LAW. 


11 


The  Chairman.  He  can  have  a hearing  before  the  department  pre- 
liminarily, because  the  department  would  report  this  question  to  the 
court,  or  to  the  United  States  district  attorney.  I had  a letter  a 
few  days  ago  from  parties  in  New  Jersey  complaining  that  certain 
decisions  there  had  been  rendered  unjustly,  and  that  there  was  no 
method  of  appealing  to  the  court.  I had  occasion,  as  I have  often 
had,  to  call  their  attention  to  the  language  of  the  pure-food  act.  It 
gives  the  executive  department,  or  administrative  department  of  the 
Government,  the  power  to  investigate  these  cases,  and  if  they  find 
that  the  law  has  been  violated  to  report  them  to  the  United  States 
district  attorney.  The  manner  is  provided  specifically.  Some  of 
these  parties  have  undertaken  to  take  a short  cut,  and  then  complain 
because  they  do  not  reach  the  right  destination. 

Mr.  Ackerly.  I ought  to  make  myself  clear  there.  I refer  to  sec- 
tion 4,  in  which  it  is  provided  that  any  party  so  notified  should  be 
given  an  opportunity  to  be  heard. 

The  Chairman.  Yes;  that  is  just  like  a grand  jury. 

Mr.  Ackerly.  That  is  a hearing  before  the  Department  of  Agri- 
culture. 

The  Chairman.  But  they  do  not  render  a final  judgment  in  the 

matter. 

Mr.  Ackerly.  And  the  Supreme  Court  has  recently  held  in  the 
case  of  the  United  States  v.  Morgan  that  if  the  department  proceeds, 
as  they  did  in  a case  in  Brooklyn,  coming  up  in  the  eastern  district 
of  New  York,  without  having  given  a hearing,  the  defendant  has 
no  redress.  His  hearing  in  court  is  the  only  one  to  which  he  is 
entitled,  but  the  failure  of  the  Government  to  comply  with  section 
4 is  no  defense  to  him  whatever. 

The  Chairman.  Because  he  had  his  remedy  which  he  might  have 
invoked,  but  did  not  invoke  ? 

Mr.  Ackerly.  You  mean  his  defense  in  court? 

The  Chairman.  He  might  have  gone  to  the  court  himself.  If  a 
man’s  goods  are  seized — I care  not  by  whom — he  must  go  into  court 
with  regard  to  the  validity  of  the  seizure.  That  is  expressly  the  law 
applicable  everywhere  alike. 

Mr.  Ackerly.  W e do  not  contest  for  a moment ' that  he  has  his 
hearing  in  court.  We  do  say  that  section  4 gives  him  nothing  as  of 
right,  and  therefore  the  manufacturer  should,  in  case 

The  Chairman.  He  had  the  right  before  the  enactment  of  this  law 
to  resist  a wrongful  taking  of  his  goods.  It  does  not  need  the  pure- 
food  law  to  do  that. 

Mr.  Ackerly.  The  case  which  Judge  O’Gorman  puts  is  this:  The 
department  finds  that  a package  weighing  16  ounces  is  branded  18. 
They  have  no  knowledge,  presumably,  as  to  why  that  shortage  exists. 

Senator  O’Gorman.  No;  that  is  not  the  proposition.  They  would 
have  the  same  knowledge  tha-t  you  possess,  I have  no  doubt,  that 
there  might  be  a variation  due  to  evaporation,  and  it  is  inconceivable 
that  where  the  variation  so  slight,  and  where  such  a reason  could 
be  given  for  the  variation,  that  the  department  or  any  administrative 
office  or  any  officer  connected  with  the  prosecution  for  the  violation 
of  the  law  would  pay  any  attention  to  it. 

Mr.  Ackerly.  There  are  many  cases  in  the  States,  Senator,  in 
which  they  do.  There  are  seven  States  that  have  such  laws  and 


12 


AMENDMENT  TO  PURE-FOOD  LAW. 


where  the  points  that  you  raise  have  depended  largely  on  the  matter 
of  the  temper  of  the  prosecuting  officer  or  his  method  of  procedure. 

Senator  O’Gorman.  I think  it  is  fair  to  assume  that  every  public 
official  is  at  least  normally  inclined  to  do  justice,  and  we  should  not 
make  rules  for  abnormal  or  exceptional  instances. 

Senator  Pomerene.  If  you  had  that  variation,  such  as  you  sug- 
gest—for  instance,  to  use  the  illustration  you  did  awhile  ago,  where 
there  might  be  a variation  of  25  per  cent  in  weight,  it  seems  to  me  it 
would  be  a tremendous  loophole  and  the  law  could  scarcely  be  en- 
forced at  all. 

Senator  O’Gorman.  It  would  emasculate  the  act  entirely. 

Senator  Pomerene.  Absolutely. 

Mr.  Ackerly.  The  regulations  of  the  department  have  recognized 
that  some  variation  would  unavoidably  occur. 

Senator  O’Gorman.  Very  true.  That  is  what  I stated  a moment 
ago. 

Mr.  Ackerly.  And  the  food-control  officials  and  weight-measure 
officials  who  adopted  this  resolution  presumably  have  spoken  for 
the  people.  They  are  the  enforcing  officers  of  these  laws.  They  are 
not  prejudiced  in  favor  of  the  trade,  certainly.  They  recognize  in 
these  resolutions  that  these  variations  inevitably  occur,  and  that 
some  provision  should  be  made  for  them  in  the  statutes. 

Senator  O’Gorman.  You  say  it  is  recommended  that  some  provi- 
sion should  be  made  in  the  statutes? 

Mr.  Ackerly.  Yes,  sir ; that  is  true. 

Senator  O’Gorman.  Recommended  by  whom? 

Mr.  Ackerly.  In  a resolution  at  New  Orleans. 

Senator  O’Gorman.  By  whom? 

Mr.  Ackerly.  By  the  Association  of  State  and  National  Food  and 
Dairy  Departments. 

Senator  O’Gorman.  I thought  you  said  recommended  by  some 
public  official  or  department? 

Mr.  Ackerly.  That  is  an  association  of  the  State  and  National 
food-control  officers — the  enforcing  officers  of  the  States  and  of  the 
National  Government  under  these  food  laws. 

The  Chairman.  Who  are  they? 

Mr.  Ackerly.  They  include  the  food  commissioners  and  dairy 
commissioners  of  all  the  States  and  the  chemists  of  their  depart- 
ments and  from  Washington;  Dr.  Wiley  has  been  attending  upon 
them.  I do  not  know  who  the  actual  delegates  from  the  Department 
of  Agriculture  were,  but  I know  that  at  some  of  the  conventions 
five  to  nine  from  the  Federal  Department  of  Agriculture  have  at- 
tended, and  those  men  are  certainly  not  prejudiced  in  favor  of  the 
trade;  and  their  resolutions,  and  those  of  the  weight  and  measure 
officials  of  the  States  and  of  the  United  States  who  met  in  Washing- 
ton this  month,  passed  a similar  resolution  referring  specifically  to 
Senator  Burton’s  bill  and  indorsing  it  as  one  form  of  such  bill. 

Senator  O’Gorman.  What  is  the  recommendation? 

Mr.  Ackerly.  That  some  leniency  of  variation — whatever  word 
you  please  to  use — should  be  granted.  The  Aveight  and  measure  reso- 
lution was  recommended  to  that  conference  by  a committee  consist- 
ing of  Dr.  F.  Reichmann,  the  superintendent  of  weights  and  meas- 
ures, of  New  York;  Mr.  J.  Q.  Emery,  of  the  food  and  dairy  commis- 


AMENDMENT  TO  PUKE-FOOD  LAW. 


13 


sion,  of  Wiscohsin;  and  Dr.  J.  P.  Buckley,  the  weight  and  measure 
official  of  some  other  State,  as  follows: 

Be  it  resolved,  That  the  seventh  annual  conference  of  the  weight  and  meas- 
ure officials  of  the  United  States,  held  February  16,  1912,  at  Washington,  D.  C., 
favors  and  respectfully  urges  the  prompt  enactment  of  such  legislation  re- 
quiring the  marking  of  the  contents  on  the  outside  of  the  containers  and  pre- 
scribing the  manner  of  sales  of  commodities  within  equitable  and  reasonable 
limits.  As  one  form  of  such  bill  we  indorse  Senate  bill  4727,  introduced  by 
Senator  Burton,  of  Ohio,  and  House  bill  4667,  introduced  by  Congressman 
Stevens,  of  Minnesota. 

Senator  O’Gorman.  It  seems  to  me  that  the  so-called  indorsement 
is  a bit  inconsistent  with  the  previous  paragraph  of  the  recommenda- 
tion. The  recommendation  favors,  as  I heard  you  read  it — that  is, 
the  general  scope  or  the  general  plan  of  this  legislation- 

favors  and  respectfully  urges  the  prompt  enactment  of  such  legislation  requir* 
ing  the  marking  of  the  contents  on  the  outside  of  containers  and  prescribing 
the  manner  of  sales  of  commodities  within  equitable  and  reasonable  limits. 

That  is  the  main  purpose  of  our  legislation.  That  is  one  of  the 
features  that  has  been  opposed  from  time  to  time  at  our  hearings  by 
people  connected  with  these  several  industries — 

As  one  form  of  such  bill  we  indorse  Senate  bill  4727,  introduced  by  Senator 
Burton,  of  Ohio,  and  House  bill  4667,  introduced  by  Congressman  Stevens,  of 
Minnesota. 

Mr.  Ackerly.  They  say  they  indorse  it. 

Senator  O’Gorman.  Now,  the  indorsement  would  be  the  recom- 
mendation that  reasonable  variations  be  permitted.  I am  impressed 
now  with  the  suggestion  that  that  would  go  far  toward  emasculating 
the  general  measure. 

The  Chairman.  There  never  was  such  a provision  written  in  any 
law  in  our  country. 

Senator  O’Gorman.  In  that  connection  I will  say  that  I can  see 
how  it  would  be  very  proper  for  Dr.  Wiley  or  anyone  else  who  might 
be  at  the  head  of  a department,  supervising  these  various  inspectors, 
to  give  them  the  necessary  instruction  or  information,  if  they  did  not 
already  possess  it,  as  to  the  probability  or  possibility  of  variations 
occurring  within  a certain  period  or  owing  to  certain  climatic  condi- 
tions, and  an  inspector  having  that  information,  being  familiar  with 
that  subject,  if  he  found — in  the  suppositious  case  in  Los  Angeles — 
that  there  was  some  error  in  the  quantity  indicated  on  the  package 
of  the  article  he  would  also  ascertain  that  that  same  article  left 
Chicago  on  a particular  day,  from  two  or  three  to  four  or  more 
months  before,  and  applying  the  information  that  I assume  all  these 
inspectors  should  have,  or  the  knowledge,  he  could  readily  account 
for  the  apparent  discrepancy  for  that  variation. 

Mr.  Ackerly.  But  it  is  his  duty,  having  found  a variation  of  two 
ounces,  to  conclude  that  it  may  have  been  a slack-filled  package,  or 
it  may  have  been  a fraudulently  filled  package,  and  then  the  Gov- 
ernment’s case  is  complete,  and  the  manufacturer  finds  himself  face 
to  face  with  the  difficulty  of  showing  that  a particular  package  or 
shipment  that  left  his  factory  six  months  or  a year  before  was  cor- 
rectly weighed  and  branded  at  that  time.  That  refers  to  a particular 
shipment. 

Senator  O’Gorman.  No  matter  how  unreasonable  might  be  the 
administration  of  Federal  office,  if  your  statement  is  accurate — and 


14 


AMENDMENT  TO  PUKE-FOOD  LAW. 


1 assume  it  is — as  to  how  these  variations  might  occur,  it  would  be 
the  simplest  thing  in  the  world  for  you  to  justify  the  original 
marking. 

The  Chairman.  My  attention  was  called  within  the  last  few  days 
to  instances  where  some  parties  have  resorted,  by  subterfuge,  to  sub- 
stituting troy  for  avoirdupois  weight.  They  mark  their  butters — 
1 pound  of  butter — 12  ounces,  when  the  law  of  course  requires  it  to 
be  16  ounces,  and  they  lost  1,400  pounds  of  butter  by  confiscation. 

Mr.  Ackerly.  On  this  point  I would  like  to  refer  to  the  catalogues 
of  two  large  wholesale  grocery  houses.  One  contains  upward  of  8,000 
items  and  the  other  10,000.  Now  there  is  an  almost  inconceivable 
range  of  products  packed  in  different  ways  and  in  different  sized 
containers  shipped  to  different  localities,  and  a myriad  of  instances 
where  variations  that  none  of  us  sitting  here  could  possibly  sit  down 
and  ascertain  in  a week  or  a year. 

Senator  O’Gorman.  I should  suppose  a man — a qualified  chemist, 
for  instance — ought  to  be  able  offhand  to  express  an  opinion  as  to  the 
probability  of  variations  in  the  weight  of  certain  goods,  caused  by 
climatic  changes  or  by  delay  in  their  consumption. 

Mr.  Ackerly.  Now,  on  that  point:  As  to  the  legal  propriety — 
which  I conceive  we  are  discussing — of  having  this  provision  in 
there,  I would  like  to  refer  to  the  tea  law.  That  applies  to  one  prod- 
uct where  we  are  dealing  with  from  eight  to  ten  thousand  variously 
packed  and  marked  products;  and  in  that  Congress  provided  that 
no  adulterated  tea  should  be  shipped  into  this  country,  and  they 
stopped  there.  Then  they  provided  that  the  Tea  Board  should  estab- 
lish the  various  standards,  and  thus  accomplish  the  necessary  details 
of  administration;  and  the  question  was  raised  there,  as  you  have 
claimed  here,  that  a statute  of  that  kind  was  improper  and  even  un- 
constitutional. In  the  case  of  Butt-field  v.  Stranahan  (192  U.  S., 
470)  Mr.  Justice  White,  in  upholding  that  statute,  said 

Senator  O’Gorman.  There  is  not  any  question  as  to  the  power  of 
Congress  to  legislate  in  the  manner  you  desire. 

Mr.  Ackerly  (continuing).  Mr.  Justice  Wliite  said: 

Congress  legislated  on  tlie  subject  as  far  as  was  reasonably  practicable,  and 
from  the  necessities  of  the  case  was  compelled  to  leave  to  executive  officials  the 
duty  of  bringing  about  the  result  pointed  out  in  the  statute.  To  deny  the  power 
of  Congress  to  delegate  such  a duty  would  in  effect  amount  to  declaring  that 
the  plenary  power  vested  in  Congress  to  regulate  foreign  commerce  could  not  be 
efficaciously  exerted. 

Now  on  that  point  also  it  was  pointed  out  in  another  case  in  the 
Supreme  Court  that  a statute  of  this  kind  is  remedial — it  is  not  a 
criminal  statute.  This  provision  in  a strictly  criminal  statute,  where 
criminal  intent  must  be  shown  by  the  Government,  would,  I admit, 
vitiate  it.  But  it  seems  to  me  a statute  of  this  kind  falls  within  the 
words  of  the  Supreme  Court,  in  the  case  of  Taylor  v.  The  United 
States  (3  How.,  197),  in  which  Mr.  Justice  Story  said: 

Laws  enacted  for  the  prevention  of  fraud,  for  the  .suppression  of  a public 
wrong,  or  to  effect  a public  good,  are  not,  in  a strict  sense,  penal  acts,  although 
they  may  inflict  a penalty  for  violation. 

Now,  the  food  law  does  not  require  as  a condition  precedent  of 
conviction  any  criminal  intent  whatever  on  the  part  of  the  manu- 
facturer, and  to  that  extent  it  is  certainly  not  a criminal  statute. 


AMENDMENT  TO  PURE-FOOD  LAW. 


15 


It  is  nothing  more  than  a quasicriminal  statute,  and  I very  frankly 
admit  Senator  Heyburn’s  objection  that  a provision  of  this  kind  was 
never  found  in  a strictly  criminal  statute  of  this  country,  but  that 
is  not  so  as  to  remedial  statutes. 

The  Chairman.  Has  any  ever  been  found  in  any  statute  contain- 
ing such  words  as  these:  “That  reasonable  variations  shall  be  per- 
mitted”? Now,  that  authorizes  some  officer,  some  subordinate  offi- 
cer, to  permit  something. 

Mr.  Ackerly.  You  have  already  provided  for  that  in  the  statute 
this  bill  proposes  to  amend. 

The  Chairman.  Who  was  that  framed  by? 

Mr.  Ackerly.  Section  3 provides  who  shall  permit  that. 

The  Chairman.  But  we  are  repealing  section  3. 

Mr.  Ackerly.  No,  Senator;  we  are  repealing  subdivision  3 of  sec- 
tion 8.  Section  3 of  the  statute  provides  for  rules  and  regulations, 
and  this  act,  by  amending  that,  brings  in  all  the  existing  Federal 
machinery  to  accomplish  the  purpose,  including  the  power  of  the 
three  Secretaries  to  make  regulations. 

The  Chairman.  Now  then,  as  to  the  phrase  “ and  tolerances  shall 
be  established  by  rules  and  regulations,”  Was  that  phrase  ever  in- 
corporated into  a statute,  do  you  think? 

Mr.  Ackerly.  It  is  provided  in  this  act. 

The  Chairman.  Well,  this  would  be  the  first  case,  would  it  not? 
You  are  a lawyer  of  some  experience.  Did  you  ever  see  that  phrase 
in  any  law? 

Mr.  Ackerly.  I can  not  nowT  refer  you  to  any  criminal  law.  There 
are  remedial  laws  in  which  “ reasonable  ” has  occurred. 

The  Chairman.  Oh,  the  word  “ reasonable  ” is  of  frequent  occur- 
rence. 

Mr.  Ackerly.  We  are  dealing  here  with  a law  that  is  not  a crim- 
inal statute,  and  you  are  dealing  with  variations  that  no  human 
power  can  foresee  or  prevent,  and  I think  you  are  putting  a manu- 
facturer and  and.  interstate  shipper  in  a very  cruel  position  to  com- 
pel him,  after  you  have  read  the  label  and  your  chemist  applies  the 
weighing  test,  to  show  at  his  peril,  no  matter  how  many  months 
after,  within  the  three-year  limit  that  that  was  excusable,  to  refer 
to  that  particular  shipment  and  to  prove  the  circumstances  and 
show  that  on  the  day  the  package  passed  interstate  the  weight  was 
exactly  correct. 

Now,  if  the  committee  prefers  the  wording  of  the  three  Secretaries 
in  framing  the  regulation  under  the  permissive-weights  provision 
of  this  statute,  we  have  no  preference.  What  we  wish  as  interstate 
shippers  is  a uniform  law  to  govern  the  entire  country,  and  not  to 
put  us  to  the  necessity  of  branding  one  way  for  one  State  and  in 
another  way  for  another  State.  Thirty-two  States  have  now  sub- 
stantially adopted  this  food  law. 

Senator  O’Gorman.  Is  there  not  substantial  uniformity  in  their 
legislation  ? 

Mr.  Ackerly.  In  those  32  States  there  is,  but  in  the  T States  that 
have  adopted  the  weight  and  measure  branding  statutes  of  compul- 
sory character  there  has  been,  as  I showed  the  committee  earlier  and 
read,  in  the  7 States  considerable  variation.  We  believe  if  Congress 
acts  again  in  response  to  this  public  demand  then  the  States — cer- 
tainly a large  proportion  of  the  32  that  have  adopted  the  food  law — 


16 


AMENDMENT  TO  PURE-EOOD  LAW. 


will  similarly  adojit  your  amendment.  We  are  not  here  as  philan- 
thropists. We  are  interstate  shippers,  and  we  seek  livable  conditions. 

The  Chairman.  Would  it  be  convenient  for  you  to  place  in  tin* 
record  the  provisions  of  the  laws  of  the  several  States  that  you  have 
referred  to? 

Mr.  Ackerly.  I would  be  very  glad  to  do  so. 

Senator  O’Gorman.  If  you  have  it  tabulated  you  can  hand  it  to 
the  stenographer  for  incorporation  in  the  record. 

The  Chairman.  You  may  just  insert  it  in  the  record. 

(The  provisions  of  the  laws  referred  to  are  as  follows:) 

NEVADA. 

A new  law  lias  been  passed  in  Nevada  requiring  compulsory  weight  branding 
of  food  products. 

The  provision  is  as  follows : 

“ Sec.  18.  It  shall  be  unlawful  for  any  person  to  put  up  any  commodity  or 
article  of  merchandise  into  a package  or  container  and  sell  or  offer  for  sale  in 
this  State  such  commodity  or  article  of  merchandise  in  that  form  without  having 
such  package  or  container  labeled  in  plain  intelligible  English  words  and  figures 
with  a correct  statement  of  the  net  weight,  measure,  or  numerical  count  of  its 
contents:  Provided,  That  nothing  in  this  section  shall  prevent  the  putting  up  of 
commodities  or  articles  of  merchandise  which  have  been  previously  sold  by  net 
weight,  measure,  or  numerical  count  into  packages  or  containers  for  the  purpose 
of  delivering  or  transporting  such  commodities  or  articles  of  merchandise. 

“ Sec.  21.  There  shall  be  taken  into  consideration  the  usual  and  ordinary 
leakage,  evaporation,  or  waste  there  may  be  from  the  time  the  package  or  con- 
tainer is  filled  by  the  vendor  until  he  sells  the  same.  A slight  variation  from  the 
stated  weight,  measure,  or  quantity  of  the  individual  package  is  permissible, 
provided  the  variation  is  as  often  above  as  below  the  weight,  measure,  or  quan- 
tity stated.  . 

“ Sec.  30.  The  terms  ‘package’  and  ‘container’  as  used  in  this  act  shall  in- 
clude any  carton,  box,  barrel,  bag,  keg,  drum,  bundle,  jar,  jug,  crate,  demijohn, 
bottle,  crock,  basket,  hamper,  pail,  can,  parcel,  package,  or  paper  wrapper.” 

The  act  takes  effect  June  1,  1911. 

SOUTH  DAKOTA. 

A new  law  has  been  enacted  in  South  Dakota  which  provides  that  an  article 
of  food  is  misbranded  when  in  ‘‘package  form,  bottle,  or  container,  if  the  same 
does  not  bear  the  true  net  weight,  the  true  net  measure,  or  true  numerical  count, 
the  name  of  the  real  manufacturers  or  jobbers  and  the  true  grade  or  class  of  the 
product,  all  of  which  is  to  be  expressed  on  the  face  of  the  principal  label  in 
clear,  distinct,  English  words  so  that  the  same  can  be  plainly  read,  provided  that 
package,  bottle,  or  container  on  hand  at  the  time  of  the  taking  effect  of  this  act 
do  not  come  within  the  provisions  of  this  paragraph. 

This  statute  takes  effect  June  2,  1911. 

WYOMING. 

A general  food  law  has  been  passed  in  Wyoming  which  is  practically  identical 
with  the  national  law,  except  that  a compulsory  weight  or  measure  branding 
provision  is  added.  It  is  provided  that  an  article  of  food  is  misbranded  “ if  in 
package  form  the  net  quantity  of  the  contents  be  not  plainly  and  conspicuously 
marked  on  the  outside  of  the  package  in  terms  of  weight,  measure,  or  numerical 
count:  Provided,  hoioever,  That  reasonable  variations  shall  be  permitted  and 
that  tolerances  shall  be  established  by  rules  and  regulations  made  in  accordance 
with  the  provisions  of  this  act.” 

The  act  provides  that  no  prosecution  is  to  be  made  against  any  dealer  who 
can  establish  a guaranty  signed  by  the  person  residing  in  the  United  States 
from  whom  he  purchased  such  article  that  the  same  is  not  misbranded  within 
the  meaning  of  this  act. 

The  act  takes  effect  July  1,  1911. 


AMENDMENT  TO  PURE-FOOD  LAW. 


17 


CONNECTICUT. 

Chapter  334  of  the  laws  of  1911  requires  that  all  foods  sold  in  package  form 
be  marked  on  the  outside  of  the  package  with  the  net  quantity  of  contents  in 
terms  of  weight,  measure,  or  numerical  count.  Reasonable  variations  are  to  be 
permitted  and  tolerances  are  to  be  established  by  rules  and  regulations  made 
by  the  dairy  and  food  commissioner  and  the  director  of  the  Connecticut  Agri- 
cultural Experiment  Station.  The  act  does  not  apply  to  confectionery  and 
shelled  nuts  offered  for  sale  in  packages  at  a price  not  exceeding  10  cents.  The 
act  does  not  apply  to  any  food  prepared  or  packed  prior  to  January  11,  1913. 
This  new  law  is  modeled  on  the  Mann-Stevens  bill,  which  the  association  is 
supporting  in  Congress. 


FLORIDA. 

Food  is  declared  to  be  misbranded  if  in  package  form  and  “ the  net  contents 
of  the  package  are  not  correctly  stated  in  terms  of  weight  or  measure,  con- 
spicuously, legibly,  and  correctly,  on  the  outside  of  the  package.” 

NEBRASKA. 

A compulsory  weight  or  measure  branding  provision  has  been  in  force  in  this 
State  for  several  years.  It  was  reenacted  this  year  with  certain  changes  and 
is  now  held  by  the  authorities  to  cover  all  food  mixtures.  It  reads : “ That  for 
the  purpose  of  this  act  an  article  shall  also  be  deemed  to  be  misbranded  • 
* * * In  the  case  of  food,  * * * Third.  If  sold  for  use  in  Nebraska  and 
m package  form,  other  than  canned  corn;  if  every  such  package,  as  branded 
and  named  below,  does  not  have  a correct  statement  clearly  printed  on  the 
outside  of  the  main  label  of  the  contents  and  also  of  the  net  weight  or  measure 
of  the  contents  exclusive  of  the  container,  viz,  all  dairy  products,  lard,  cot- 
tolene,  or  any  other  article  used  for  a substitute  for  lard,  wheat  products,  oat 
products  and  corn  products  and  mixtures,  prepared  or  unprepared,  sugar  sirup 
and  molasses,  tea,  coffee,  and  dried  fruit : Provided,  however , That  the  pro- 
vision shall  not  apply  to  packages  put  up  by  the  retailer,  nor  to  packages  on 
hand  by  any  retailer  at  the  time  of  taking  effect  of  this  act.  Fourth.  In  case  of 
liquids,  other  than  medicines,  if  the  true  quantity  in  container  thereof  is  not 
correctly  * * 

This  law  became  effective  June  12,  1911. 

NORTH  DAKOTA. 

The  food  Jaw  was  amended  at  this  session  of  the  legislature  so  as  to  provide 
that  in  the  enforcement  of  the  long-existing  North  Dakota  requirement  that 
tood  products  be  branded  with  a statement  of  the  weight,  reasonable  varia- 
tions be  permitted  and  tolerances  therefor  established  and  promulgated  bv  the 
food  commissioner. 

This  act  became  effective  July  1,  1911. 

Senator  Pomerene.  The  one  thing  you  are  complaining  of  particu- 
Jarly  is  the  variation  of  weights  due  to  atmospheric  conditions? 

All.  Ackerly.  No;  we  do  not  believe  that  anyone  can  possibly 
name  all  the  causes  here.  We  might  with  a representative  gather- 
ing  of  the  entire  trade.  We  can  not  specify  all  the  possible  instances 
m which  there  would  be  variations  in  the  sardine  industry  for  in- 
stance. J 5 

Senator  O’Gorman.  Do  you  know  of  any  other  causes  that  would 
result  ? 

Air.  Ackerly.  The  one  specified  in  Dr.  AViley’s  recommendation  is 
as  to  weighing  or  measuring  or  filling  of  the  individual  package. 
That  is  a very  prevalent  cause.  It  is  not  possible  for  any  human 
machinery  or  the  human  hand  to  fill  a long  series  of  packages  with 
exactly  the  same  weights.  Evaporation,  I should  say  here,  was  the 
most  prevalent  cause. 

32305—12 2 


18 


AMENDMENT  TO  PURE-EOOD  LAW. 


Senator  O’Gorman.  If  you  have  containers  suitable  for  the  varia- 
tions of  weight  there  should  not  be  any  difficulty  in  having  it  exact. 
What  is  the  particular  product  that  you  sell  ? 

Mr.  Ackerly.  We  are  wholesale  grocers.  We  handle  various  lines. 
The  salmon  packers  have  told  us  that  any  law  that  they  have  seen 
requiring  compulsory  weight  and  branding  would  be  almost  imprac- 
ticable as  applied  to  the  salmon  industry,  because  of  the  varying  sizes 
of  the  fish  and  the  manner  of  packing.  There  would  be  a variation 
in  the  weight  of  cans  that  would  be  wider  than  those  as  to  the  cereal 
products,  or  sardines,  imported  and  domestic. 

Senator  O’Gorman.  As  to  cereal  products,  I can  not  conceive  of 
there  being  any  difficulty  in  having  precise  and  exact  weight,  be- 
cause I imagine  you  would  have  containers  suitable  for  the  various 
weights.  You  would  have  a pound  can  or  a 5-pound  can,  or  a 10- 
pound  can,  and  in  the  cereals  you  would  simply  fill  those  up. 

Mr.  Ackerly.  The  actual  tests  on  shredded  wheat  or  corn  flakes 
have  shown  the  variations,  as  I said  earlier,  to  have  been,  in  some 
cases,  on  a normal  16-ounce  package  as  low  as  13J  and  as  high  as  18. 

Senator  O’Gorman.  Occupying  the  same  space? 

Mr.  Ackerly.  Yes,  sir. 

Senator  O’Gorman.  Filling  the  same  container? 

Mr.  Ackerly.  Yes,  sir.  I do  not  mea[n  to  say  that  in  a factory 
turning  out  thousands  a day  they  can  always  have  every  container 
filled  just  the  same,  and  as  to  corn  flakes,  they  are  filled  from  large 
bins.  The  flakes  that  are  on  top  are  large  and  lighter,  while  the 
flakes  below  in  these  large  bins  are  more  broken  and  compacted  by 
the  weight  of  those  above.  The  impossibility  of  uniform  filling  of 
equal  weights  is  at  once  evident.  This  is  but  one  instance  among 
hundreds.  What  I am  trying  to  show  is,  if  we  had  provision  for 
regulations  and  for  variations  the  various  industries  could  come  be- 
fore Dr.  Wiley’s  board,  or  the  boards  in  the  States,  and  present  fully 
the  facts  as  to  their  particular  products  and  seek  a just  regulation 
applicable  to  their  reasonable  needs. 

Senator  Pomerene.  Let  me  ask  you  this  question  in  this  connec- 
tion: What  percentage  of  variation  do  you  think  there  should  be? 

Mr.  Ackerly.  I can  not  state  exactly.  It  seems  to  me  that  there 
are  as  many  answers  to  that  question  as  there  are  industries;  or,  I 
might  say,  as  there  are  products.  The  instance  that  I have  cited 
as  to  corn  flakes  has  been  frequently  proved  by  weighing  tests.  You 
can  not  put  the  same  weight  of  flakes  in  every  package  when  you 
are  putting  out  thousands  a day,  and  it  is  inevitable  that  there  will 
be  large,  flaky  packages,  and  mere  will  be  others  of  more  broken 
flakes. 

The  Chairman.  Could  they  do  it  with  a less  number  per  day? 

Mr.  Ackerly.  The  manufacturer  must  answer  you  that. 

The  Chairman.  You  seem  to  place  stress  on  the  fact  that  you  put 
out  so  many  packages  a day,  and  I wanted  to  know  if  it  was  a ques- 
tion of  expediency,  or  whether  it  is  a fact  that  it  could  not  be  done. 

Mr.  Ackerly.  Of  course,  you  realize  that  the  more  we  can  handle 
per  diem  the  lower  will  be  the  cost. 

The  Chairman.  It  matters  not  how  prosperous  they  may  be,  or 
how  much  they  can  handle,  but  how  the  public  who  consumes  their 
product  may  be  treated.  That  is  the  main  question. 

Senator  Pomerene.  Just  note  the  phraseology  of  this: 


AMENDMENT  TO  PURE-FOOD  LAW. 


19 


“ Provided , however , That  reasonable  variations  shall  be  per- 
mitted and  tolerances  shall  be  established  by  rules  and  regulations 
made  in  accordance  with  the  provisions  of  this  act.” 

How  could  a provision  of  that  kind  ever  be  enforced  ? 

Mr.  Ackerly.  That  language  empowers  the  gentlemen,  who,  under 
section  3 of  this  act,  have  made  the  existing  regulation,  to  make  fur- 
ther regulations  upon  this  new  problem,  and  it  is  not  to  be  assumed 
that  they  are  going  to  grant  us  any  variation  that  is  not  reasonable. 
In  fact,  it  must  be  reasonable,  according  to  the  statute  we  propose. 

Senator  Pomerene.  On  the  other  hand,  it  is  not  to  be  assumed  that 
they  are  going  to  be  unreasonable  in  their  prosecutions. 

Mr.  Ackerly.  What  we  ask,  briefly,  is  the  right  given  in  the  statute 
to  each  industry  to  show  the  necessities  of  its  case.  I can  not  con- 
ceive that  any  one  statute  can  itself  reasonably  cover  the  thousands 
of  items  of  food  that  go  into  interstate  commerce. 

Senator  Pomerene.  That  is  a question  somewhat  akin  to  the  con- 
tentions that  were  made  in  the  adjudications  of  the  pure-food  act 
a year  ago.  The  question  was  the  fact  that  food  was  adulterated; 
that  it  was  put  on  the  shelf — whether  it  was  a defense  to  show  that 
the  grocer  did  not  know  that  it  was  adulterated.  In  the  early  part 
of  this  adjudication  that  was  the  defense. 

Mr.  Ackerly.  Absence  of  criminal  intent  is  no  defense  here. 

Senator  Pomerene.  I know,  and  it  is  absolutely  right  that  it  should 
not  be. 

Mr.  Ackerly.  We  contend  that  this  is  a civil  statute,  and  the  ab- 
sence of  a criminal  intent  is  no  defense  whatever. 

Senator  Pomerene.  It  was  then  declared  by  the  judges,  as  I re- 
member— and  I had  occasion  to  go  into  that  one  time — the  Massa- 
chusetts Supreme  Court,  the  New  York  Court  of  Appeals,  and  the 
Illinois  Supreme  Court  all  took  the  position  that  it  was  not  neces- 
sary to  show  any  guilty  knowledge,  and  that  the  grocer  practically 
guaranteed  the  purity  of  his  goods  when  he  had  them  on  his  shelf. 
That  was  because  the  public  good  seemed  to  require  it.  Now,  if  that 
be  true  as  to  the  quality  of  the  goods,  pray  tell  me  what  difference 
is  there  between  the  question  of  quality  and  the  question  of  quantity  ? 

Mr.  Ackerly.  Senator,  if  I be  a manufacturer,  for  the  moment,  we 
can  guarantee  absolutely  as  to  quality,  for  we  know  or  ought  to 
know  just  what  is  going  into  every  package  we  make,  but  it  is  not 
humanly  possible  to  turn  out  hundreds  of  packages  daily  and  to 
know  that  they  are  going  to  run  the  same  in  weight  or  measure. 
We  have  thought  that  in  placing  it  in  the  hands  of  the  officials  who 
made  the  existing  regulations  that  we  were  putting  the  power  where 
it  should  be,  and  that  their  regulations  would  guard  the  public  and 
be  workable  and  effective  as  the  existing  ones  are,  under  the  many 
other  provisions  of  the  statute. 

Our  chief  idea  in  favoring  this  bill  when  it  was  introduced  by  Mr. 
Mann,  and  later  in  this  Congress  by  the  other  gentlemen,  Senator 
Burton  and  Congressman  Stevens,  was  to  be  guaranteed  by  statute 
the  right  to  come  before  a board  and  give  that  testimony  that  could 
not  be  given  on  the  floor  of  Congress  or  before  committees  as  to  the 
myriad  products  that  the  act  covered  and  get,  if  the  board  agreed 
with  us,  reasonable  regulations  as  to  the  various  product,  in  case  we 
could  show  by  preponderance  of  evidence  to  the  satisfaction  of  the 
three  Secretaries  or  the  board  sitting  that  some  consideration  in  a 


20 


AMENDMENT  TO  PURE-FOOD  LAW. 


particular  case  was  necessary  and  was  not  covered  by  the  existing 
regulations.  If  we  can  not  show  that,  we  are  not  entitled  to  any 
regulations  allowing  variation  under  the  language  of  the  bill  as  it 
stands,  in  which  anything  unreasonable  is  expressly  excluded.  If 
that  is  not  here  so  expressed  we  are  satisfied  with  the  statute  that 
shall  so  express  it. 

The  Chairman.  What  did  you  say  were  the  provisions  where  au- 
thority is  given  to  the  Secretary  to  make  uniform  rules  and  regula- 
tions for  carrying  it  out?  Would  there  be  any  uniformity  under  the 
provisions  of  this  act,  because  on  its  face  it  says  that  uniformity  will 
not  be  required  but  rather  that  reasonable  variations  may  be  per- 
mitted. How  would  that  conform  with  the  uniform  rules? 

Mr.  Ackerly.  I think  that  as  a legal  question  if  the  salmon  in- 
dustry, for  example,  came  before  the  board  and  showed  by  reason- 
able evidence  that  should  carry  conviction  with  the  board  or  enforc- 
ing officers  that  in  some  particular  case,  as,  for  example,  the  catching 
and  packing  of  salmon,  for  whose  size  God  and  nature,  not  man,  is 
responsible,  there  is  an  inevitable  variance  in  weight  as  between 
packages,  then  a fair  regulation  granting  relief  would  not  be  class 
distinction  nor  lack  of  uniformity. 

The  Chairman.  The  party  would  be  held  responsible  who  was  the 
consumer.  He  would  be  responsible  for  this  and  would  pay  for  it. 
It  is  a question  whether  the  consumer  pays  for  it  or  the  man  who 
gets  it. 

Mr.  Ackerly.  No;  they  must  give  full  weight.  That  depends  not 
on  the  individual  package,  but  upon  the  average  normal  output  of 
the  plant.  The  average  must  be  full  weight  as  often  above  as  below. 

Senator  O’Gorman.  Do  your  clients  deal  in  the  fish  business? 

Mr.  Ackerly.  As  wholesalers,  we  carry  it.  I wish  to  refer  finally 
to  one  amendment  that  has  been  sometimes  urged  as  to  this  bill  and 
all  similar  State  bills,  and  that  is,  that  there  should  be  an  exemption 
granted  as  to  small  packages.  It  is  phrased  variously — one  would 
exempt  packages  weighing  6 ounces  or  less  or  selling  for  10  cents 
or  less. 

Now,  that,  gentlemen,  is  an  exemption  of  a certain  class  or  a certain 
kind  of  cases.  We  believe  that  if  such  a statute  is  necessary  at  all,  if 
there  is  an  evil  that  demands  remedy  here,  the  corrective  statute 
should  cover  all  cases,  large  and  small. 

The  Chairman.  What  do  you  refer  to? 

Mr.  Ackerly.  We  have  asked  no  exemption  ourselves  as  to  canned 
goods  or  dried  fruits  or  any  particular  line  about  which  there  are 
difficulties  as  to  packing.  So  we  ask  that  if  the  law  is  passed  it  shall 
apply  to  all  products,  without  exempting  the  small  package — those 
that  sell  for  5.  cents  or  less  or  10  cents  or  less  or  weigh  6 ounces  or 
less — nor  any  arbitrary  class. 

The  Chairman.  Can  you  refer  me  to  the  provisions  where  any 
difference  is  made  now? 

Mr.  Ackerly.  In  the  bill  as  it  exists,  and  in  the  law  as  it  exists, 
every  food  product,  in  small  and  large  packages,  is  covered  justly 
and  equally.  I stated  expressly  that  I referred  to  the  amendments  so 
frequently  proposed  in  the  past  to  graft  exceptions  upon  a proposed 
statute  that  should  either  apply  to  all  packages  and  sales,  large  and 
small,  or  should  not  be  passed  at  all. 

Senator  O’Gorman.  Is  there  any  exemption  in  the  act  now? 


AMENDMENT  TO  PURE-FOOD  LAW. 


21 


Mr.  Ackerly.  None  whatever;  and  there  should  not  be. 

Senator  O’Gorman.  Are  you  apprehensive  that  there  may  be  such? 

Mr.  Ackerly.  I know  that  before  committees  of  the  State  legisla- 
tures, where  this  subject  has  been  discussed,  sometimes  interests  within 
the  State  where  the  bill  proposed  to  cover  all  commodities,  would 
appear  and  ask  exemption  for  packages  selling  for  10  cents  or  less, 
or  wording  of  that  kind,  which  would  exempt  small  packages.  If 
there  is  any  evil,  it  applies  to  the  little  and  big. 

Senator  O’Gorman.  That  exemption  would  increase  the  profit 
incident  to  these  5 and  10  cents  stores,  or  their  operations  ? 

Mr.  Ackerly.  I do  not  understand  that  those  interests  have  asked 
exemption. 

Senator  O’Gorman.  That  has  become  a very  large  interest  in  this 
country.  Personally  I would  be  opposed  to  any  such  exemption. 

The  Chairman.  You  do  not  claim  there  is  any  such  exemption  now 
in  the  law? 

Mr.  Ackerly.  There  is  in  some  State  laws,  but  in  the  existing  bill, 
in  the  bill  of  Senator  Burton,  there  is  no  such  exemption  of  any  kind. 
IVe  have  good  evidence  that  it  will  be  burdensome  and  difficult  for 
us  to  comply  with  such  a law,  but  we  have  asked  no  exemption1  and 
we  wish  the  amendment,  if  it  comes,  to  cover  what  the  permissive 
provision  of  section  8 of  the  food  law  does  now — that  is,  if  in  package 
form  the  contents  are  stated,  the  label  shall  be  true,  irrespective  of 
class  or  size.  If  you  compel  them  to  be  stated,  we  wish  it  to  cover  all 
packages,  large  and  small,  as  the  present  law  does. 

The  Chairman.  This  bill  was  intended  to  be,  in  plain  language,  a 
bill  to  compel  people  to  tell  the  truth.  That  was  the  primary  object 
of  this  bill. 

Mr.  Ackerly.  When  we  urged  the  enactment  of  the  food  law,  as  I 
said  at  the  beginning,  that  was  our  intention. 

The  Chairman.  What  provision  do  you  refer  to  when  you  say  you 
urged  the  passage  of  the  pure-food  law  ? 

Mr.  Ackerly.  The  National  Wholesale  Grocers’  Association  was 
organized  at  Buffalo  in  June,  1906.  On  that  day,  after  they  adopted 
their  constitution,  Mr.  Beckmann,  who  sits  at  my  left  here,  tele- 
graphed, by  the  direction  of  that  convention,  to  the  Speaker  of  the 
House,  urging  the  adoption  of  the  law  that  is  now  the  food  and  drugs 
act,  passed  on  the  last  day  of  that  month. 

The  Chairman.  The  House  did  not  pass  the  bill  that  is  now  the 
pure  food  and  drugs  act.  It  passed  a bill  creating  the  Bureau  of 
Standards,  and  the  Senate  cut  that  out;  and  the  Senate  bill  was 
adopted  in  conference.  I think  you  gentlemen  ought  to  pay  a little 
attention  to  the  history  of  this  legislation. 

Mr.  Ackerly.  I mean  the  law  that  is  now  in  existence — the  act  of 
June  30,  1906. 

The  Chairman.  That  was  never  passed  by  the  House. 

Mr.  Ackerly.  Then  it  is  not  a law. 

The  Chairman.  Yes;  it  was  adopted  in  conference.  The  House 
measure  was  discarded  and  the  Senate  bill  substituted  for  it  in  con- 
ference between  the  two  Houses. 

Mr.  Ackerly.  Well,  Mr.  Chairman,  T never  come  to  Washington 
without  learning  something.  You  have  taught  me  some  constitu- 
tional law;  I thought  (he  House  must  also  pass  the  bill. 

There  being  no  further  questions,  Mr.  Ackerly  was  excused. 


22 


AMENDMENT  TO  PURE-FOOD  UW. 


STATEMENT  OE  JOHN  A.  GREEN,  SECRETARY  NATIONAL  ASSOCIA- 
TION OF  RETAIL  GROCERS. 

Mr.  Green.  Mr.  Chairman,  I simply  want  to  say  that  we  have  all 
been  in  favor  of  the  pure-f ood  bill ; and  I think  possibly  if  you  will 
refer  back  to  the  time  the  bill  was  under  discussion,  I had  some  corre- 
spondence with  you  about  the  bill  at  the  time. 

The  Chairman.  Yes ; you  had. 

Mr.  Green.  I know  I was  in  frequent  correspondence  with  Dr. 
Wiley  at  the  time  of  the  discussion  of  the  bill,  before  it  was  passed. 
I have  always  been  in  favor  of  this  amendment.  I have  nothing  to 
lose  by  telling  our  customers  what  we  have;  and  still  we  ask  no 
favors.  Of  course,  I understand  that  we  are  going  to  have  some  little 
shrinkage.  Raisins  coming  from  the  coast  and  put  on  our  shelves, 
some  of  them  are  going  to  get  dry ; but  we  will  sell  it  when  it  is  dry 
as  a pound  of  raisins  or  a pound  of  currants. 

Then  we  have  competition,  and  what  I call  bad  competition. 
Sometimes  a man  comes  into  the  store  and  gets  a pound  of  currants 
of  a package  of  currants,  and  they  are  10  or  12  cents,  and  he  goes  into 
another  store  and  they  are  8 cents. 

The  Chairman.  Do  you  mean  to  say  that  some  are  selling  a pack- 
age at  a less  price  because  they  contain  less? 

Mr.  Green.  They  do  not  say  that  it  is  less,  but  we  very  often  find 
that  kind  of  competition. 

The  Chairman.  That  they  know  it  is  below  the  weight  and  they 
reduce  the  price  accordingly  ? 

Mr.  Green.  They  sell  them  for  that  price. 

Senator  O’Gorman.  They  are  practically  deceiving  the  consumer? 

Mr.  Green.  Yes,  sir.  We  want  a net-weight  bill.  Of  course,  we 
ask  for  just  and  reasonable  variation. 

Senator  O’Gorman.  Are  you  apprehensive  that  there  will  be  any 
substantial  annoyance  or  embarrassment  to  merchants  or  dealers  in 
consequence  of  the  language  of  this  act  on  the  subject  of  possible  vari- 
ations ? 

Mr.  Green.  Yes ; if  you  take  out  the  tolerance ; that  is,  the  reason- 
able variations  there.  That  is  all  we  ask.  When  the  pure-food  bill 
first  went  into  effect  we  had  a little  trouble  with  the  commissioners, 
but  after  a while  we  understood  each  other.  All  we  wanted  then 
was,  if  anything  was  found  in  our  store — in  any  of  our  stores — if  any- 
thing is  found  that  does  not  comply  with  the  pure-food  law,  all  we 
ask  is  that  you  give  us  notice,  so  that  we  can  send  it  back  where  we 
got  it  from. 

Senator  Pomerene.  This  pure-food  laAV  seems  to  have  gone  into 
effect  on  January  1,  1907? 

Mr.  Green.  Yes,  sir. 

Senator  Pomerene.  You  are  familiar  with  the  trade  generally. 
How  many  prosecutions  have  been  begun  in  cases  where  the  irregu- 
larity in  weight  was  due  to  these  atmospheric  conditions  or  other 
causes  over  which  the  manufacturer  or  wholesaler  did  not  have  con- 
trol, or  which  could  be  explained  ? 

Mr.  Green.  In  regard  to  weights  I know  of  nothing.  It  was  with 
regard  to  the  contents. 


AMENDMENT  TO  PURE-FOOD  LAW. 


23 


Senator  Pomerene.  That  is,  the  quality  of  the  contents  ? 

Mr.  Green.  Yes,  sir ; the  purity. 

Senator  Pomerene.  I am  speaking  now  of  weight. 

Mr.  Green.  We  have  had  no  trouble  about  weight. 

Senator  Pomerene.  Do  you  know  of  anybody  who  has? 

Mr.  Green.  No,  sir;  I do  not. 

Senator  Pomerene.  Is  there  any  real  reason,  then,  for  providing 
for  this  latitude? 

Mr.  Green.  Yes,  sir;  the  public  demands  it.  I think  there  is. 
Under  the  present  act,  of  course,  the  manufacturer  is  not  obliged  to, 
and  does  not,  stamp  the  contents  in  the  box  as  to  weight. 

Senator  Pomerene.  That  is,  he  does  not  now? 

Mr.  Green.  He  does  not  now,  because  the  law  does  not  compel  him 
to.  This  law  seeks  to  compel  him  to  put  the  net  weight  on  the  box. 
I can  understand  very  well  from  my  practical  knowledge — and  I 
have  been  in  the  grocery  business  practically  all  my  life — that  if 
codfish  be  put  up  in  pound  boxes  it  is  the  pound  all  right,  but  the 
salt  will  evaporate  or  run  out  of  it  and  it  will  become  damp,  and 
then  the  moisture  will  leave  it. 

Senator  O’Gorman.  You  say  you  have  never  heard  of  any  prose- 
cutions? 

Mr.  Green.  It  does  not  say  it  shall  be  a pound.  The  law  does  not 
compel  it.  The  law  only  says  if  they  do  put  it  on  it  must  be  the  true 
weight.  Now,  we  seek  to  put  it  on,  and  we  want  it. 

The  Chairman.  There  is  some  latitude  in  the  words  in  that  third 
paragraph  of  the  existing  law — 

If  in  package  form  and  the  contents  are  stated  in  terms  of  weight  or  of 
measure,  they  are  not  plainly  and  correctly  stated  on  the  outside  of  the 

package. 

“Are  not  plainly  and  correctly  stated.”  Now,  any  court  adminis- 
tering that  law  should  take  into  consideration,  as  it  has  been  sug- 
gested by  Senator  O’Gorman,  the  accidents  or  circumstances  beyond 
the  control  of  the  parties. 

Mr.  Green.  Yes,  sir. 

Senator  O’Gorman.  But  even  bejmnd  that,  Senator.  This  require- 
ment is  only  that  the  branding  be  correct  at  the  time  the  branding 

was  put  on. 

The  Chairman.  That  is  right. 

Mr.  Ackerly.  Is  it  not  when  it  crosses  the  State  line? 

Senator  O’Gorman.  You  are  not  responsible  for  any  change  that 
may  subsequently  occur.  You  are  justified  whenever  the  department 
or  the  law  can  be  satisfied  that  at  the  time  you  put  that  brand  on  it 
was  a true  and  correct  statement. 

Mr.  Ackerly.  If  I packed  dried  fruit  in  southern  California  and 
put  it  in  my  packing  house  and  left  it  there  eight  months,  branded 
correctly  when  I packed  it,  and  it  evaporates  somewhat  in  that  time, 
and  I ship  it  to  Colorado 

Senator  O’Gorman.  I would  make  a qualification  as  to  my  former 
statement.  The  true  brand  must  be  on  at  the  time  you  forward  it. 

The  Chairman.  And  at  the  time  he  sells  it. 

Mi*.  Ackerly.  In  other  words,  it  is  the  interstate  shipment. 

Mr.  Green.  Suppose  I buy,  as  I have  many  times,  codfish  in  Bos- 
ton and  ship  it  to  Cleveland,  and  in  the  meantime  the  salt  becomes 


24 


AMENDMENT  TO  PURE-EOOD  LAW. 


water  and  leaves  the  fish  in  a certain  amount.  I still  have  my  pound 
as  it  was,  but  it  is  not  a pound  when  I hand  it  over  my  counter. 

The  Chairman.  This  applies  to  the  retail  dealer  when  you  sell  it. 
If  you  mark  it  a pound,  it  must  be  a pound.  If  you  sell  it  for  a 
pound,  it  must  be  a pound. 

Mr.  Green.  We  are  not  supposed  to  mark  it. 

The  Chairman.  It  is  so  provided  by  law,  whether  it  is  wholesaler 
or  retailer. 

Mr.  Green.  That  will  compel  us,  unless  there  is  some  reasonable 
allowance  made,  to  take  it  out  of  the  container  and  weigh  it. 

The  Chairman.  Well,  that  is  not  much  of  a hardship.  I do  not 
know  of  any  reason  why  you  should  not  do  it.  The  fact  of  the  matter 
is  the  trouble.  That  does  not  excuse  you  from  complying  with  the 
law. 

Mr.  Green.  We  are  not  seeking  to  evade  trouble.  We  are  seeking 
to  do  the  right  thing  in  the  right  way. 

The  Chairman.  Have  you  anything  further  that  you  desire  to 
say  at  this  time? 

Mr.  Green.  No,  sir;  nothing  in  particular. 

There  being  no  further  questions,  Mr.  Green  was  thereupon  excused. 

Senator  Pomerene.  Before  Dr.  Wiley  makes  his  statement,  in 
view  of  what  the  counsel  has  said,  I would  like  to  ask  a question. 
You  took  the  case  of  dried  fruits  being  packed  in  California.  Now, 
suppose  there  was  a provision  in  this  bill  whereby  there  could  be 
what  are  called  reasonable  variations,  would  there  not  be  a tempta- 
tion, then,  in  the  packing  of  these  fruits  not  to  have  them  as  dry  as 
they  ordinarily  would  be  and  in  that  way  defraud  the  public? 

Mr.  Ackerly.  It  seems  to  me  that  the  regulation  should  guard 
against  that.  I assume  that  would  be  a fraud,  and  I do  not  consider 
it  a reasonable  variation  to  pack  goods  to-day  and  ship  them  eight 
months  later  and  ask  the  consumer  or  buyer  to  stand  the  difference 
in  weight  that  has  occurred  in  your  packing  house,  where  they  have 
been  stored  for  eight  months.  We  do  not  consider  that  reasonable; 
and  I do  not  suppose  that  the  board  before  whom  such  a variation 
was  asked  would  ever  permit  it  by  any  arrangement. 

The  Chairman.  You  have  no  right  to  keep  them  eight  months 
before  you  sell  them.  If  you  have  them  for  eight  months  in  your 
warehouse,  it  must  be  at  your  own  expense. 

Mr.  Ackerly.  The  law  speaks  as  of  the  time  of  interstate  shipment, 
and  we  wish  to  make  it  clear  that  we  do  not  consider  uniform  short- 
ages “ reasonable  ” variations,  and  I suppose  the  committee  will  not 
assume  that  the  enforcing  officers  or  courts  enforcing  the  law  here 
proposed  would  consider  a fraud  or  a uniform  “ variation  ” below  the 
stated  weight  either  honest  or  “ reasonable.”  The  bill  limits  varia- 
tions to  what  is  reasonable  and  to  what  the  Federal  officers  who 
make  the  regulations  may  consider  just,  and  therefore  grant.  There 
is  not  a word  in  the  bill  granting  uniform  variations  below  the 
weight  stated.  Variations  will  necessarily  and  inevitably  be  both 
over  and  under.  The  bill  allows  only  the  reasonable,  and  that  allow- 
ance is  both  just  and  necessary. 

Mr.  Ackerly  was  thereupon  excused. 


AMENDMENT  TO  PUKE-FOOD  LAW. 


25 


STATEMENT  OF  DR.  HARVEY  W.  WILEY,  CHIEF  OF  BUREAU  OF 
CHEMISTRY,  DEPARTMENT  OF  AGRICULTURE. 

Dr.  Wiley.  Mr.  Chairman  and  gentlemen,  when  this  measure  was 
here  last  year  I understood  that  a provision  of  this  kind  was  to  be 
offered  and  was  very  anxious  at  that  time  to  appear  and  state  my 
objections  to  it,  but  I did  not  have  the  opportunity.  I am  very  glad 
to  have  this  opportunity,  because  I think  this  is  a very  serious  error 
if  it  should  be  enacted  into  law,  and  I will  give  you  briefly  the 
reasons  therefor. 

It  is  true  that  there  is  some  little  difficulty  in  filling  by  hand  or  by 
machines  to  give  weight  or  volume,  but  there  is  no  difficulty  in  so 
filling  where  the  excesses  are  as  often  above  as  below  the  stated 
measure. 

In  regard  to  whether  there  are  uniform  weights  in  these  packages, 
I may  say  that  my  experience  is  that  the  uniformity  in  short  weight 
is  quite  sufficiently  uniform. 

Senator  O’Gorman.  Quite  general. 

Dr.  Wiley.  Yes,  sir;  and  uniformly  short.  We  have  never  yet 
weighed  a series  of  packages  in  which  the  average  weight  quite  came 
up  to  the  stated  weight,  but  where  we  have  a very  considerable  num- 
ber of  them  a little  above  and  a larger  number  a little  below  we  have 
exercised  our  judgment  in  the  matter  and  not  brought  any  prosecu- 
tion. But  where  we  have  found  the  stated  weight  or  measures  uni- 
formly below  and  where  there  has  been  no  excuse  whatever,  except 
carelessness — carelessness  in  filling — we  have  brought  prosecutions. 

I will  give  you  some  of  the  most  prominent  cases.  It  has  been 
a very  common  custom  in  making  cheeses  to  put  them  in  the  curing 
house  and  stamp  them  with  their  weight,  and  they  are  sold  under  that 
stamp  weight  and  have  been  sold  right  along  or  tried  to  be  sold 
since.  I will  say,  by  the  way,  that  we  have  never  lost  a case  in  so 
far  as  I can  recollect  in  the  court  on  that  short  weight.  We  have 
had  probably  more  cases  against  cheeses  than  any  other,  because 
it  has  been  a uniform  practice,  or  was  up  to  the  time  we  proceeded, 
to  put  green  cheeses  in  the  curing  house  weighing,  say,  64  pounds, 
tind  sell  it  for  64,  and  when  it  is  cured  to  sell  it  right  to  the  retailer. 

Senator  O’Gorman.  What  is  the  curing  period  generally? 

Dr.  Wiley.  I do  not  know  how  long  it  is,  but  I suppose  from  two 
to  four  months,  probably.  That  is,  as  a rule. 

Mr.  Green.  Will  you  allow  me  to  give  you  a variation  in  cheeses? 

Dr.  Wiley.  Yes. 

Mr.  Green.  I have  had  my  man  bring  out  cheeses  where  they 
weighed  33  pounds  and  found  that  they  weighed  29-J-  out  of  the  box. 

Senator  O’Gorman.  That  is  for  what  period? 

Mr.  Green.  Within  four  or  five  months  after  curing. 

Dr.  Wiley.  I will  cite  another  instance,  and  that  is  hams.  It  is 
very  common  when  a ham  has  been  smoked  to  wrap  up  and  stamp  its 
weight  on  it.  I have  bought  hams  in  this  town  with  that  stamped 
weight,  which  varied  greatly  from  the  actual  weight  that  they  had  at 
the  time. 

So  that  in  my  opinion  there  is  no  difficulty,  and  will  be  found  no 
difficulty,  as  soon  as  this  law  becomes  effective,  in  having  the  weight 
properly  adjusted,  and  there  is  no  loss  to  the  consumer  if  his  package 


26 


AMENDMENT  TO  PUEE-EOOD  LAW. 


is  a little  bit  more  than  the  stated  weight,  and  there  will  be  no  diffi- 
culty in  having  a perfect  uniformity  in  the  matter,  so  that  while  it  is 
impossible  to  get  the  exact  weight  in  each  package  the  average  weight 
will  be  a just  one. 

The  Chairman.  You  mean  under  the  existing  law? 

Dr.  Wiley.  Under  the  existing  law;  yes.  There  will  be  no  diffi- 
culty whatever  in  having  it  perfectly  satisfactory.  The  remarkable 
variations  due  to  hygroscopicity,  which  have  been  instanced  here, 
could  not  possibly  have  happened  if  the  material  at  the  time  of  pack- 
ing was  in  a properly  dried  condition.  There  are  slight  variations 
now,  from  day  to  day,  in  goods  that  are  not  protected  from  the 
atmosphere.  Some  day  the  humidity  of  the  atmosphere  approaches 
100,  and  oh  other  days,  in  this  country,  it  is  65,  probably ; and  in  arid 
countries  it  is  still  lower,  and  foods  which  are  hygroscopic — and  most 
foods  are  when  not  in  air-tight  containers — lose  or  gain  the  content 
of  water  which  they  should  have  in  an  air-dried  state  in  the  locality 
where  they  exist. 

That  is  the  great  point.  They  pack  those  foods  wet  and  put  the 
stamp  on  them  and  then  sell  them  under  that  stamp,  and  in  Cali- 
fornia when  they  go  to  pack  the  dried  fruits  for  the  market  the  first 
thing  they  do  is  to  sprinkle  water  all  over  them,  and  then  sulphur 
them  so  they  will  keep,  with  this  added  water.  They  then  ship  them 
into  commerce.  No  wonder  they  dry  out,  because  they  have  been 
shipping  water  instead  of  dry  food. 

Senator  Pomerene.  What  is  the  purpose  of  sprinkling  them  with 
water? 

Dr.  Wiley.  One  purpose  is  to  get  the  water  in  and  the  other  pur- 
pose is  that  it  makes  dried  food  more  flexible. 

Senator  Pomerene.  In  packing? 

Dr.  Wiley.  In  packing;  but  the  principal  object  is  to  increase  the 
weight. 

Senator  O’Gorman.  That  used  to  be  a common  practice  years  ago 
with  even  coal  dealers,  who  would  take  a ton  of  coal  and  throw  water 
on  it. 

Mr.  Green.  That  was  to  keep  the  dust  off. 

Senator  O’Gorman.  That  was  one  purpose,  but  the  other  was  to 
increase  the  weight. 

Dr.  Wiley.  In  the  case  of  cereal  products  the  weight  will  vary  so 
little  as  to  be  hardly  worth  while  considering  at  all.  They  do  vary 
a slight  fraction  of  an  ounce  above  or  below  the  standard  weight  at 
the  air-dried  place. 

The  Chairman.  At  the  air-packed  weight. 

Dr.  Wiley.  At  the  air-packed  weight.  There  will  be  no  trouble 
if  the  packer  at  the  time  of  packing  dries  it  at  the  lowest  humidity 
that  it  is  likely  to  be  exposed  to — and  that  is  what  ought  to  be  done. 
In  regard  to  the  size  of  the  package,  that  is  easily  regulated.  The 
packages  do  vary  a little  usually,  but  they  vary  just  as  much,  if  they 
are  honestly  made,  above  as  below,  and  when  this  regulation  was 
made — which  it  seems  to  me  entirely  covers  this  condition  of  affairs — 
you  will  realize  that  these  slight  variations  are  permissible  under  the 
regulations,  for  they  are  as  often  above  as  below. 

I think  this  committee  can  easily  see  that  in  honestly  packed 
goods  the  variations  will  be  as  often  above  as  below  the  stated  pack- 
age weight  or  volume. 


AMENDMENT  TO  PURE-FOOD  LAW. 


27 


In  regard  to  the  salmon,  there  may  be  occasionally  a slight  varia- 
tion, but  it  is  just  as  apt  to  be  above  as  below  if  the  packages  are  of 
honest  size,  because  there  are  as  many  small  fish  packed  as  big 
ones,  and  if  the  packages  are  made  to  hold  a pound  of  medium  size 
there  will  be  just  that  many  as  above  or  below  the  weight. 

The  reasons  for  a special  toleration,  as  presented  here  in  this  hear- 
ing and  as  is  provided  for  in  this  language,  seem  to  me  wholly  in- 
valid. I can  not  see  any  force  in  any  of  them  which  would  be  suffi- 
cient to  warrant  Congress  in  making  an  exception,  as  is  provided  for 
here,  further  than  that  which  is  covered  already  by  the  existing 
regulations.  In  my  opinion  the  difficulties  are  largely  theoretical 
and  the  manufacturers  will  find  it  just  as  easy  to  comply  with  this 
law  after  it  has  been  in  operation  for  a short  time  as  it  is  to  pack  as 
they  do  now. 

You  take  the  packages  of  staple  foods,  like  pounds  of  coffee  and  of 
sugar.  You  do  not  find  any  short  weight  in  those  as  a rule.  We 
have  never  found  any  at  all. 

Senator  Pomerene.  They  vary  somewhat,  due  to  atmospheric  con- 
ditions also? 

Dr.  Wiley.  They  do,  but  we  always  tolerate  that  variation.  We 
assume  that  sugar  is  packed  dry — granulated  sugar — because  sugar 
is  not  very  hygroscopic;  but  coffee  is.  I weighed  several  packages  of 
coffee  for  six  weeks  every  day,  and  I wish  I had  brought  along  the 
results  to  show  you  how  slight  they  were. 

The  coffee  was  exposed.  It  was  not  in  a wrapped  package,  but 
in  the  open  air.  I weighed  those  packages  every  day  for  six  weeks 
just  to  establish  what  the  variation  would  be  from  the  hygroscopic 
point  of  view.  It  was  negligible  for  legal  purposes.  No  person 
who  is  charged  with  the  execution  of  the  food  law  would  ever  think 
of  bringing  a case  against  those  variations  which  took  place,  and 
coffee  is  a hygroscopic  body,  quite  as  hygroscopic  as  the  cereals,  and 
I venture  to  say  if  you  dry  a cereal  at  its  normal  content  of  moisture 
in  the  atmosphere  to-day.  which  would  probably  be  between  10  and 
12  per  cent,  and  put  that  in  a package  an,d  weigh  it  every  day  for  a 
year,  you  would  get  the  smallest  fraction  of  an  ounce  of  variation 
this  way  or  that  during  that  whole  period.  The  foods  that  are 
packed  wet  approximate  the  air-drv  state,  and  therefore  they  should 
not  be  marked  except  to  provide  for  this  condition. 

Now,  what  the  manufacturers  will  do  will  be  to  find— if  he  has  not 
already  found  out — what  is  the  normal  content  of  those  packages  at 
the  normal  humidity  of  the  air,  what  is  the  normal  content  in  water, 
and  he  will  dry  his  goods  just  a little  below  that  normal  content,  and 
I promise  he  will  never  have  a case  brought  against  him  for  an  over- 
weight package  of  goods.  On  the  other  hand,  if  it  is  a drug,  a pow- 
erful drug,  then  the  overweight  is  the  thing  we  ought  to  look  after. 
So  in  the  packing  of  a drug  of  a high  narcotic  power  or  any  of  the 
drugs  which  are  dangerous  the  greatest  care  must  be  taken  not  to 
have  them  overweight,  and  drugs  as  a rule  are  not ; that  is,  the  alka- 
loids are  not  hygroscopic,  and  there  the  importance  of  the  weight  is 
such  that  they  must  be  tested  particularly  and  individually,  so  that 
there  may  be  no<  excuse  for  either  underweight  or  overweight  in  a 
drug  of  that  kind. 

So  this  proposed  measure  applies  only  to  foods,  and  the  drug  fea- 
ture of  it  may  not  be  considered. 


28 


AMENDMENT  TO  PURE-EOOD  LAW. 


I believe  wholesale  dealers  and  manufacturers  especially  will  find 
not  the  least  difficulty,  provided  they  will  ascertain  if  a thing  is 
exposed  in  a package  which  is  not  air-tight.  They  will  ascertain 
the  average  humidity  of  the  air,  and  even  if  they  should  ship  it  into 
a dryer  climate,  which  is  not  usually  the  case,  because  not  a great 
deal  of  food  goes  into  the  drier  climates— but  even  if  they  should, 
the  change  would  be  so  slight  from  the  humidity  of  Washington  or 
New  York — the  normal  humidity — to  that  of  Nevada  or  Idaho  or 
Arizona  that  just  the  least  little  allowance  of  a little  overweight  in 
each  package  would  entirely,  compensate  for  it. 

Now,  if  you  go  to  the  grocer,  he  weighs  your  package.  Do  you 
ever  see  him  give  it  to  you  with  the  weights  pulling  down?  I never 
do.  All  the  grocers  that  I deal  with  have  the  food  product  pulling 
down.  They  give  always  full  weight,  and  just  a little  margin. 

Senator  O’Gorman.  A little  margin  in  excess? 

Dr.  Wiley.  Yes;  if  anything.  The  manufacturer  can  do  the 
same  thing.  If  he  is  selling  a pound  wreight  he  can  put  a fraction 
more  in  of  overweight.  He  is  not  injuring  anybody  by  that;  he  is 
not  injuring  his  own  trade;  he  is  establishing  it,  and  not  defrauding 
any  consumer. 

I do  not  believe  that  there  would  be  one  particle  of  trouble  in  fully 
complying  with  the  provisions  of  this  act,  except  with  regard  to 
the  alcoholic  products,  which  are  under  the  control  of  the  Bureau 
of  Internal  Revenue.  There  is  a constant  passage  through  the  wood 
pores  of  water — both  of  alcohol  and  water.  Water  passes  through 
more  rapidly  than  alcohol,  but  the  result  is  a continual  diminution 
in  volume  on  standing,  a natural  diminution  which  • is  not  only 
inevitable,  but  also  highly  beneficial  because  if  it  were  not  for  those 
pores  the  liquor  would  not  acquire  the  virtues  of  age.  Hence,  a 
barrel  of  alcoholic  spirits — especially  distilled  spirits — which  was 
marked,  for  instance,  at  40  gallons,  in  a year  would  only  have  38 
gallons,  or  less.  They  are  the  only  things  that  I can  see  that  would 
have  to  be  allowed  for,  but  always  when  they  are  sold  they  are  re- 
gauged, so  they  never  need  cross  the  State  line  without  the  re- 
gauging feature. 

The  Chairman.  I think  the  gauging  law  provides  against  any 
fraud  there. 

Dr.  Wiley.  Yes,  sir. 

The  Chairman.  That  is  my  judgment,  under  the  pure-food  law. 

Dr.  Wiley.  Yes;  the  arguments  which  have  been  made  here  for 
evaporation,  in  my  opinion,  do  not  apply  to  any  other  kind  of  food, 
except  liquors  in  wood,  because  if  an  ordinary  food  product  is 
properly  dried  before  packing,  that  evaporation  will  not  take  place, 
and  I should  say  if  this  law — which  I consider  a most  excellent  one — 
should  pass  with  this  proviso,  it  would  be  a notice  to  the  manufac- 
turer that  you  can  shave  your  notes  10  per  cent  if  you  want  to. 

Senator  O’Gorman.  Which  proviso  do  you  refer  to? 

Dr.  Wiley.  The  one  that  is  in  here  now — saying  to  the  three  Sec- 
retaries, “You  must  take  this  regulation,”  and  requiring  them  to 
make  a specific  kind  of  regulation  Avhich  does  not  apply  in  my  opin- 
ion to  any  overweight,  but  refers  only  to  underweight.  I think  this 
proviso  has  no  reference  to  anything  but  underweight.  I think  that 
is  the  sole  idea  of  it. 

Senator  O’Gorman.  How  would  you  regard  this  enactment? 


AMENDMENT  TO  PURE-FOOD  LAW. 


29 


Dr.  TV  iley.  I would  object  to  the  enactment  of  this  proviso,  but 
the  rest  of  the  bill  I am  heartily  in  favor  of. 

The  Chairman.  Are  you  in  favor  of  the  Burton  bill  ? 

Dr.  Wiley.  We  have  it  right  here,  have  we  not  ? Is  this  not  the 
Burton  bill? 

The  Chairman.  Yes. 

Dr.  Wiley.  I am  in  favor  of  the  principle.  I have  not  looked  it 
over  particularly,  except  as  to  the  proviso. 

I he  Chairman.  Let  me  see  if  I misunderstood  you.  I want  to  be 
sure  about  it.  Are  you  in  favor  of  providing  for  the  reasonable 
variations  or  tolerance? 

Dr.  Wiley.  No;  not  by  such  a proviso.  That  is  the  thing  I am 

objecting  to. 

The  Chairman.  That  is  what  I thought.  Now,  that  is  the  Bur- 
ton bill. 

Dr.  Wiley.  And  that  is  the  proviso  here  ? 

The  Chairman.  That  is  really  what  the  bill  is  drawn  for;  that 
was  the  reason  for  proposing  "this  legislation.  It  is  all  in  the 
proviso.  • v 

Mr.  Ackerly.  Mr.  Chairman,  may  I say  a word? 

The  Chairman.  Yes. 

Ackerly.  We  have  been  misunderstood  here,  if  you  thought  we 
had  been  saying  that  the  enforcing  officers — the  Secretaries  and  the 
courts — are  going  to  consider  a uniform  underweight  reasonable.  . If 
the  bill  should  provide,  in  Dr.  WileyY  words,  that  that  variation 
should  be  as  often  above  as  below,  we  are  content.  Dr.  Wiley  him- 
self has  said 

Senator  O’Gorman.  That  is  the  way  the  law  is  administered  now. 
Mr.  Ackerly.  He  says  the  variation  is  inevitable. 

The  Chairman.  I want  to  ask  you,  Dr.  Wiley,  if,  in  your  judg- 
ment, there  is  any  reason  for  changing  the  existing  law,  which  reads: 

If  in  package  form,  and  the  contents  are  stated  in  terms  of  weight  or  measure 
they  are  not  plainly  and  correctly  stated  on  the  outside  of  the  package. 

Wherein  is  that  law  defective? 

Dr.  Wiley.  Because  there  is  no  mark  or  anything  on  his  package 
at  all.  It  does  not  require  any  mark.  A great  many  people  have 
stopped  selling  packages  marked  by  weight  since  that  law  went  into 

effect. 

The  Chairman.  Bottles  of  wine — they  do  not  any  longer  say  Quarts 
or  pints.  They  say  bottles.  J H 

Dr.  Wiley.  They  say  bottles  and  half  bottles. 

Mr.  Ackerly.  They  have  now  compelled  in  seven  States  a decla- 
ration of  weghts. 

Dr.  Wiley.  I think  it  is  highly  important  for  the  protection  of 
the  public  that  we  buy  our  food  by  weight  or  volume,  and  especially 
weight.  J 

The  Chairman.  I am  heartily  in  accord  wth  the  suggestion,  and 
m entire  accord  with  the  conclusion,  that  under  existing  law  one  is 
not  required  to  state  the  fact  as  to  weight  or  volume. 

Dr.  Wiley.  He  is  not;  I do  not  think. 

The  Chairman.  Well,  that  would  depend  upon  the  construction 
of  the  law. 

Dr.  Wiley.  I would  be  very  glad  if  I could  construe  it  that  way. 


f 


■ 


' 

. 

. 


. 

. 


AMENDMENT  TO  PUREFOOD  LAW 


HEARING 


BEFORE  THE 

COMMITTEE  ON  MANUFACTURES 
UNITED  STATES  SENATE 

SIXTY-SECOND  CONGRESS 

SECOND  SESSION 

ON 

S.  4727 

A BILL  TO  AMEND  SECTION  8 OF  AN  ACT  ENTITLED  “AN  ACT  [FOR 
PREVENTING  THE  MANUFACTURE,  SALE,  OR  TRANSPORTATION 
OF  ADULTERATED  OR  MISBRANDED  OR  POISONOUS  OR 
DELETERIOUS  FOODS,  DRUGS,  MEDICINES,  AND 
LIQUORS,  AND  FOR  REGULATING  TRAFFIC 
THEREIN,  AND  FOR  OTHER  PURPOSES,” 

APPROVED  JUNE  30,  1906 


MARCH  29,  1912 


Printed  for  the  use  of  the  Committee  on  Manufactures 


PART  2 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 
1912 


COMMITTEE  ON  MANUFACTURES. 


United  States  Senate. 
WELDON  B.  HEYBURN,  Idaho.  Chairman. 


GEORGE  T.  OLIVER,  Pennsylvania. 
WILLIAM  LORIMER,  Illinois. 

ROBERT  M.  LA  FOLLETTE,  Wisconsin. 
ALBERT  B.  CUMMINS,  Iowa. 

GEORGE  P.  MCLEAN,  Connecticut. 


ELLISON  D.  SMITH,  South  Carolina. 
JAMES  A.  REED,  Missouri. 

ATLEE  POMERENE,  Ohio. 

JAMES  A.  O’GORMAN,  New  York. 
HOKE  SMITH,  Georgia. 


II 


Addison  T.  Smith,  Idaho,  Clerk. 


AMENDMENT  TO  PURE-EOOD  LAW. 


THURSDAY,  MARCH  28,  1912. 

Committee  on  Manufactures, 

United  States  Senate, 

W ashing  ton,  D.  C. 

Hearing  before  Senator  Heyburn,  chairman  of  the  Committee  on 
Manufactures,  relative  to  Senate  bill  4727. 

Present . Mr.  Herman  W.  Hoops,  of  New  York  City,  representing 
the  National  Confectioners’  Association;  Mr.  Thomas  E.  Lannen,  of 
Chicago.  Ill  attorney  for  the  National  Confectioners’  Association: 
Mr.  Henry  Heide,  of  New  York  City,  representing  the  National  Con- 
fectioners Association;  Mr.  Marshal]  Cushing,  of  New  York,  and 

771'  ^eed,  of  Chicago,  111.,  representing  the  National 

Candy  Co.  • 


STATEMENT  OF  MR.  THOMAS  E.  LANNEN,  OF  CHICAGO,  ILL.  AT- 
TORNEY  FOR  THE  NATIONAL  CONFECTIONERS’  ASSOCIATION. 


The  Chairman.  What  is  it  that  you  think  ought  to  be  done,  or  not 
done,  m this  matter  ? 

Mr.  Lannen  Senator,  we  wish  to  suggest  an  amendment  to  the  bill. 
J nave  prepared  the  amendment  as  suggested. 

The  Chairman.  Suppose  you  read  it.  First,  state  what  section  or 
paragraph  it  amends. 

Mr.  Lannen.  Page  2,  line  9. 

The  Chairman.  That  is,  after  the  end  of  the  third  paragraph  of 
section  1?  r 

Mr.  Lannen.  Immediately  after  the  period,  we  suggest  the  inser- 
tion of  the  following: 


further  That  the  provisions  of  this  paragraph  shall  not  apply  to  con- 
ifless  thin  il  cente?1"  paCkage  form  when  the  retail  P^ce  such  package 


The  Chairman.  Why  do  you  fix  11  cents? 

Mr.  Lannen.  Senator,  I "only  learned  about  this  bill  day  before 
yesterday,  and  yesterday  I prepared  the  amendment  to  cover  the 
a and  10  cent  packages  of  candy  and  shelled  nuts,  because  that  was 
the  subject  with  which  I was  particularly  familiar  myself.  But 
Mr.  Hoops  and  Mr.  Ileide,  who  have  had  a great  many  vears  of 
experience  in  the  confectionery  business,  tell  me  that  there  should 
not  be  a limitation  as  to  price;  that  there  should  be,  rather,  a limita- 
tion as  to  weight;  and  they  suggest  that  instead  of  being  5 or  10  cent 
packages  the  limitation  should  be  fixed  at  6 ounces.  Candy  in  pack- 
ages weighing  less  than  0 ounces,  or  shell  nuts  in  packages  weighing 
less  than  6 ounces,  should  be  exempted  from  the  provisions  of  the  act 
requiring  the  weight  to  be  stated. 

I he  Chairman.  This  bill  proposes  to  amend  section  8 of  the  pure- 
foocl  law,  which  deals  with  the  matter  of  misbranding.  You  propose 
to  strike  out  the  words  from  line  9,  page  1,  down  to  the  word  “ pack- 
age^  in  line  1,  page  2,  do  you  ? Is  that  the  idea  ? 

Mr.  Lannen.  No,  Senator. 

36956 — pt  2 — 12 


31 


32 


AMENDMENT  TO  PURE-FOOD  LAW. 


The  Chairman.  That  is  the  statement  in  the  Burton  bill.  Are 
you  opposing  the  Burton  bill  ? 

Mr.  Lannen.  No  ; we  are  not. 

The  Chairman.  I supposed  you  were  not,  and  I was  merely  calling 
attention  to  the  basic  legislation  that  is  to  be  dealt  with  here. 

Mr.  Lannen.  We  have  no  objection  to  the  present  legislation  as 
it  stands,  of  course,  and  we  have  no  objection  to  this  bill.  As  I 
understand,  the  bill  seeks  to  strike  out  the  third  paragraph  of  section 
8 of  the  law  and  substitute  the  paragraph  that  appears  in  the  sec- 
ond page  of  the  bill;  the  difference  being  that  while  the  present 
law  does  not  require  the  net  weight  or  measure  to  be  stated,  this  bill 
would  require  the  net  weight  or  measure  to  be  stated. 

We  have  no  objection  to  that  as  a general  proposition,  because  if 
candy  is  sold  by  the  pound  we  believe  the  customer  is  entitled  to  get 
a pound.  If  liquids  are  sold  by  the  gallon,  or  by  the  quart,  or  by 
the  pint,  or  by  any  enumerated  quantity,  the  customer  ought  to  get 
that  amount ; and  confectioners  who  sell  candy  by  weight  are  willing 
to  state  the  weight  on  the  label,  and  willing  to  see  that  it  is  there. 

The  Chairman.  I will  say  this : Recently  at  Whitman’s,  in  Phila- 
delphia, I was  discussing  with  an  acquaintance  of  mine  this  question 
of  the  weight  of  candy.  I had  heard  a great  deal  of  complaint  about 
the  price  paid  for  boxes.  He  said,  “ In  order  to  show  you  the  fact 
we  will  take  a box  right  down  off  the  shelf  here,”  which  he  did.  He 
opened  it,  and  put  the  candy  in  the  scale,  and  it  was  full  weight. 
He  said,  “ There  should  be  no  objection  to  that  law.”  He  said,  “ No- 
body pays  anything  for  these  boxes  at  all.”  I was  rather  surprised. 
I was  under  the  impression  that  the  box  was  included  in  the  weight, 
because  I have  seen  the  girls,  when  you  ask  them  to  make  up  a box  of 
candy,  put  the  box  on  the  scales  and  put  in  the  candy.  Unless  they 
have  a counter  to  put  on  the  scales,  they  naturally  weigh  the  box. 

Since  this  question  has  been  brought  to  the  attention  of  the  com- 
mittee, I should  like  to  have  those  facts  developed.  This  committee, 
and  the  Senate  in  passing  upon  the  committee’s  work,  will  be  in- 
fluenced more  by  a statement  of  facts  than  by  a plea  or  a theory. 
Pardon  me  for  interrupting  you. 

Mr.  Lannen.  With  respect  to  confectionery,  as  a rule  it  is  not  a 
product  which  shrinks  to  any  particular  degree.  There  may  be  some 
slight  variation,  and  some  candies  may  shrink;  but  we  are  in  favor 
of  a provision  in  the  law  which  will  endeavor  to  take  care  of  shrink- 
age from  natural  causes — evaporation  or  reasonable  variation  on  the 
part  of  the  factory  help.  For  instance,  in  filling  pound  packages, 
some  girls  may  fill  them  a little  more  and  some  a little  less ; and  some 
reasonable  variation  ought  to  be  allowed  in  the  law,  if  it  is  possible. 
It  seems  to  be  a hard  thing  to  work  out. 

The  Chairman.  Is  there  any  pretense  made  as  to  the  standard  of 
weight  that  is  to  be  applied  in  dealing  with  candies  ? There  was  one 
dealer  who  claimed  that  he  was  only  bound  to  give  12  ounces  for  a 
pound.  He  made  that  claim.  You  do  not  know  of  any  general  claim 
of  that  kind,  do  you? 

Mr.  Lannen.  I never  heard  of  it  before,  Senator. 

The  Chairman.  I never  heard  of  it  before  and  do  not  want  to 
again.  Still,  that  was  rather  a pert  answer.  He  said  the  law  did  not 
say  which  kind  of  a pound  it  was,  whether  avoirdupois  or  otherwise. 

Mr.  H.  W.  Hoops.  He  had  an  elastic  conscience. 


AMENDMENT  TO  PURE-FOOD  LAW. 


33 


The  Chairman.  I thought  so,  but  I thought  this  was  a good  oppor- 
tunity to  know  whether,  so  far  as  you  know,  anybody  makes  any  such 
claim. 

Mr.  Lannen.  I never  heard  of  it. 

The  Chairman.  So  that  we  are  dealing  with  16-ounce  pounds? 

Mr.  Lannen.  Yes. 

There  is  put  out  on  the  market  a class  of  small  packages  that  re- 
tail for  5 cents.  For  instance,  you  have  probably  seen  in  the  stores 
salted  peanuts  put  up  in  little  wax-paper  bags.  You  go  in  and  pay 
5 cents  for  them,  or  for  a bag  of  almonds.  Sometimes  you  pay  10 
cents  for  the  almond  package,  because  it  depends  upon  the  kind  of 
nuts.  Peanuts  usually  are  sold  for  5 cents,  but  almonds  are  more 
expensive  nuts,  sometimes  selling  for  10  cents.  But,  at  any  rate, 
they  are  in  these  little  packages.  That  is  one  class.  Then  there  are 
the  cough  drops  that  are  put  out  at  5 cents — menthol  cough  drops; 
and  there  are  numerous  other  candies  of  that  kind,  with  which 
weight  has  nothing  to  do.  The  manufacturer  puts  out  thousands 
and  millions  of  them  every  year,  and  all  he  does  is  to  see  that  the 
package  is  filled.  The  size  of  the  package  never  varies.  The  girl 
simply  fills  the  package,  but  the  shape  of  the  pieces  of  candy  will 
vary  the  weight  of  the  packages.  You  can  not  take  any  two  of 
those  packages  and  say  that  they  weigh  exactly  the  same.  On  that 
class  of  packages  we  think  the  bill  should  not  apply.  So  we  have 
asked  for  an  amendment  to  exempt  those  small  packages. 

Then  there  is  chewing  gum.  If  you  were  going  to  require  the 
net  wreight  to  be  stated  on  the  individual  packages  you  would  have 
to  state  it  on  packages  of  chewing  gum.  That  is  not  a product  that 
is  ever  sold  by  weight.  This  bill,  I believe,  covers  numerical  count. 

The  Chairman.  Of  course  loose  candy  that  is  shoveled  up  with  a 
scoop  and  put  in  a bag  and  weighed  does  not  come  within  the  pro- 
visions of  this  bill  at  all. 

Mr.  Hoops.  It  would  be  a physical  impossibility  for  us  to  weigh 
those  little,  tiny  packages.  The  way  that  is  done  is  this : The  pack- 
age is  put  in  a tray  with  the  flap  open,  and  the  pieces  are  poured 
right  in,  and  then  the  tray  is  shaken ; they  get  it  just  as  full  as  they 
can,  and  then  the  package  is  closed  up.  To  weigh  every  package 
would  be  almost  a physical  impossibility,  and  would  very  much 
increase  the  cost.  The  labor  involved  is  something  awful.  What  we 
do  is  to  fill  the  package  full. 

The  Chairman.  You  fix  the  limit  at  6 ounces? 

Mr.  Hoops.  Yes,  sir;  that  is  all  we  ask  for. 

The  Chairman.  That  is  not  a half  pound. 

Mr.  Hoops.  Oh,  no.  Anything  over  that  ought  to  be  marked,  we 

think. 

The  Chairman.  Is  candy  boxed  to  any  extent  in  quarter  pounds  ? 

Mr.  Hoops.  There  are  some  quarter-pound  boxes. 

The  Chairman.  I have  noticed  quite  a number  of  these  little  boxes 
with  a drawer  in  them,  that  have  mints  and  things  of  that  kind  in 
them. 

Mr.  Hoops.  They  are  just  filled  up.  Nobody  is  deceived  by  it. 
They  get  their  money’s  worth;  and  it  is  not  as  though  they  were 
buying  a large  amount  of  goods.  They  are  5,  or  10,  or  15  cent 
packages. 


34 


AMENDMENT  TO  PUEE-EOOD  LAW. 


The  Chairman.  It  is  like  these  little  cornucopias  of  ice  cream  that 
they  sell — it  is  a temptation  without  a measure. 

Mr.  Hoops.  It  is  filled  up  as  much  as  it  can  be. 

The  Chairman.  I think  your  point  is  well  stated,  gentlemen,  and 
it  will  be  made  a part  of  the  record  in  this  case.  Have  you  anything 
further  to  say  in  regard  to  it? 

Mr.  Hoops.  I should  like  to  say  simply  this:  Last  year,  I think  it 
was,  or  year  before,  when  Representative  Mann  had  the  bill  up — I did 
not  know  we  were  coming  here  for  this  purpose.  We  were  down  here 
on  some  other  matter.  But  I brought  with  me  at  that  time  a number 
of  little  packages,  ranging  from  a penny  to  two  or  three  packages  for 
a penny.  I brough  a half -bushel  basket  full,  and  I put  them  on  the 
table,  and  the  Congressmen  saw  at  once  how  impossible  it  was  to 
weigh  them.  So  then  Mr.  Mann  said  that  a regulation  would  have  to 
be  made  to  exempt  them.  We  would  rather  have  the  exemption  in 
the  bill,  and  that  would  obviate  the  necessity  for  making  a regulation 
for  that  purpose.  That  is  the  way  we  feel  about  it. 

The  Chairman.  I think  some  of  those  small  packages  are  labeled 
“ 1-cent  package,”  “ 2-cent  package,”  etc. 

Mr.  Hoops.  Yes,  sir;  “ 5-cent  package,”  and  so  on.  AYe  would 
rather  have  packages  up  to  6 ounces  exempt  than  to  have  the  limita- 
tion on  the  matter  of  price.  On  very  high-priced  chocolate,  for  in- 
stance, a small  package  would  cost  25  cents,  whereas  in  the  case  of  a 
cheaper  candy  it  would  be  only  5 cents. 

The  Chairman.  I think  the  weight  should  be  the  basis. 

Mr.  Hoops.  I think  so. 

The  Chairman.  The  price  is  sometimes  fancy  and  sometimes 
standard. 

Mr.  Hoops.  That  is  it. 

Mr.  Henry  Heide.  I may  state,  Senator,  that  I put  up  quite  a con- 
siderable number  of  5 and  10  cent  packages,  and  we  fill  them  as  full 
as  we  can.  They  are  all  of  regulation  size.  If  I should  be  compelled 
to  put  the  weight  on  them,  it  certainly  would  very  considerably  in- 
crease the  cost  of  putting  them  up.  It*  would  be  almost  impossible  to 
have  it  exact,  because  if  the  pieces  are  at  all  large,  naturally  one  more 
or  one  less  would  perceptibly  change  the  weight.  We  naturally 
would  have  to  give  overweight  rather  than  underweight,  and  it  would 
be  impossible,  so  to  speak,  to  put  up  these  goods. 

The  Chairman.  The  only  thing  to  be  guarded  against  in  the  case 
of  these  small  packages  is  a false  statement  of  weight.  In  other 
words,  as  I have  had  occasion  to  remark  all  along  in  connection  with 
this  pure-food  legislation,  this  is  a bill  to  compel  people  to  tell  the 
truth. 

Mr.  Heide.  AATe  do  not  put  on  any  weight  at  all. 

The  Chairman.  It  is  intended  to  prevent  people  from  saying  that 
a thing  is  good  when  it  is  bad,  or  from  saying  that  it  weighs  more 
than  it  does,  or  whatever  it  may  be.  I am  not,  and  never  have  been, 
inclined  to  go  into  technicalities  that  might  merely  form  the  basis  for 
argument. 

Mr.  Lannen.  I want  to  say  that  some  of  the  officials  that  have 
been  charged  with  the  enforcement  of  the  law  take  the  position  that 
“ net  weight  ” means  the  precise  net  weight.  In  my  office  I have 
records  of  having  asked  some  of  the  food  commissions  whether  if 
we  labeled  a package  44 15  ounces  or  over  ” that  would  do.  They 


AMENDMENT  TO  PURE-FOOD  LAW. 


35 


said:  “No;  it  will  not  do.  That  is  not  a statement  of  the  net 
weight.” 

The  Chairman.  I think  the  net-weight  statement  is  all  right.  If 
your  goods  will  dry  out  by  being  held  over  a long  time,  you  prob- 
ably will  move  them  more  quickly  in  the  market.  Take  candies,  for 
instance.  There  ought  to  be  no  inducement  to  hold  them  over  until 
they  have  dried  out  so  as  to  lose  weight.  All  candy  ought  to  be  con- 
sumed, or  remanufactured,  or  something — whatever  you  do  to  it— 
before  it  will  lose  weight. 

Mr.  Hoops.  That  is  what  we  do.  We  do  not  encourage  large  pur- 
chases. We  only  encourage  the  purchase  of  so  much  as  can  be  sold 
within  a reasonable  time. 

The  Chairman.  Take  the  case  of  these  buckets  of  red  and  white 
candy.  I notice  everything  I see  as  I go  along,  and  I see  those 
wmoden  buckets  labeled  “ 30  pounds  of  candy,”  but  they  are  sold  out 
by  the  scoop. 

Mr.  Hoops.  Yes. 

The  Chairman.  The  label  on  the  original  package  has  nothing  at 
all  to  do  with  the  label  that  the  customer  sees  ? 

Mr.  Hoops.  No. 

The  Chairman.  He  buys  candy  by  the  pound,  and  he  can  see 
whether  or  not  the  scale  is  down.  If  the  scales  are  not  accurate, 
that  is  a crime  that  an  officer  of  the  law  can  take  care  of. 

Mr.  Lannen.  In  this  case,  Senator,  the  law  says  “ in  package 
form.”  I understand  that  to  mean  that  if  we  ship,  let  us  say,  5 
dozen  packages  of  those  little  5-cent  boxes  of  cough  drops  in  a crate 
we  must  label  each  of  those  little  5-cent  packages.  If  that  is  the 
case 

The  Chairman.  If  you  are  going  to  sell  them  by  weight,  yes; 
certainly. 

Mr.  Lannen.  But  this  law  we  are  talking  about  here  says  that  you 
must  label  each  of  those  little  packages,  and  it  is  not  sufficient  to  put 
the  label  on  the  original  package. 

The  Chairman.  Just  read  the  provision  you  have  reference  to. 

Mr.  Lannen.  It  says: 

The  article  shall  be  deemed  to  be  misbranded  if.  in  package  form,  the 
quantity  of  the  contents  be  not  plainly  and  conspicuously  marked  on  the  outside 
of  the  package  in  terms  of  weight,  measure,  or  numerical  count. 

The  question  is,  What  is  meant  by  “ in  package  form  ” ? 

The  Chairman.  It  means  whether  or  not  they  are  in  a package. 
For  instance,  the  package  to  the  retailer  would  probably  be  the  large 
inclosure.  The  package  is  merely  the  inclosure. 

Mr.  Hoops.  Yes ; that  is  right. 

The  Chairman.  But  when  he  comes  to  deal  with  his  customer, 
the  package  is  the  thing  that  he  hands  to  his  customer. 

Mr.  Hoops.  Yes. 

The  Chairman.  The  law  would  be  applied  according  to  the  facts. 
If  the  retailer  was  complaining,  he  would  complain  of  the  misbrand- 
ing of  the  package  by  the  man  who  sold  it  to  him,  and  that  would 
be  the  one  single  package. 

Mr.  Hoops.  That  is  not  according  to  the  decisions. 

The  Chairman.  It  does  not  matter  about  the  decisions.  The  de- 
cisions of  the  courts  are  binding,  but  the  decisions  of  the  department 
are  not.  This  is  not  a law  that  rests  upon  the  decisions  of  the  de- 


36 


AMENDMENT  TO  PUBE-FOOD  LAW. 


partment  at  all.  When  the  bill  came  to  me  from  the  House,  it  con- 
tained a provision  for  a bureau  of  standards.  But  I had  to  make  a 
fight  in  the  Senate  against  the  provision  for  a bureau  of  standards, 
and  I won  it.  There  are  a great  many  people  who  do  not  seem  to 
remember  that,  or  perhaps  never  heard  of  it.  I had  a letter  the  other 
day  from  the  president  of  the  civic  association  about  it,  and  he 
seemed  to  be  under  the  impression  that  the  House  bill  became  a law. 

It  did  not.  The  Senate  bill  was  substituted  in  conference  for  the 
House  bill.  The  Senate  bill  provides  that  every  question  here  is  a 
justiciable  question,  and  that  it  shall  be  determined,  if  anyone 
chooses  to  carry  the  controversy  that  far,  in  the  courts  and  not  in 
the  department.  No  department  decision  is  final. 

Mr.  Lannen.  But,  Senator,  that  is  a very  vital  point  with  u<? 

The  courts  have  held  that  any  shipment  under  the  national  pure- 
food  law 

The  Chairman.  Shipments  to  whom? 

Mr.  Lannen.  Suppose,  for  example,  I take  5 gallon  cans  of  sirup 
and  put  them  in  a box,  nail  up  the  box,  label  the  outside  of  the  box 
correctly,  and  ship  the  box  from  Illinois  to  Iowa.  The  courts  have 
held  that  the  original  package  is  covered  by  the  law,  and  also  that 
each  individual  one  of  the  cans  is  covered  by  this  law. 

The  Chairman.  That  is  a different  proposition.  The  box  is  not 
a container  of  the  article.  It  is  a container  of  packages  of  the  article. 

It  is  not  sold  on  the  basis  of  the  original  box  in  which  the  cans  are 
placed  for  convenience.  The  real  package  there  is  the  can. 

Mr.  Lannen.  Yes;  but  would  not  this  law  cover  that  can,  and 
would  it  not  cover  our  little  interior  packages,  the  5-cent  packages? 

The  Chairman.  I think  you  would  be  borrowing  trouble  there, 
because  if  you  ship  100  or  100  dozen  pound  boxes  of  candy  in  a big 
wooden  container,  such  as  those  things  are  shipped  in,  that  is  not 
the  commercial  package.  That  is  the  railroad  package.  That  is  the 
package  for  convenience  of  transportation.  The  courts  would  not 
quibble  over  that.  They  would  say  the  package  that  the  law  referred 
to  was  the  one  in  which  the  purchaser  was  interested.  You  might 
have  shipped  20  dozen  or  5 dozen,  and  it  would  have  made  no  differ- 
ence whatever  to  him. 

Mr.  Lannen.  Then  that  would  mean  that  we  would  have  to  label 
each  of  these  little  5-cent  packages? 

The  Chairman.  Not  the  5-cent  packages.  Your  amendment  is  to 
avoid  the  necessity  of  labeling  the  5-cent  packages. 

Mr.  Lannen.  Yes;  but  I mean  according  to  the  law  as  it  stands. 

The  Chairman.  I am  not  entirely  sure  that  the  law  as  it  stands 
will  bear  that  interpretation ; but  I do  not  care  to  pass  upon  that  kind 
of  a question  now.  I do  not  have  to. 

Mr.  LIoops.  What  we  would  like  would  be  to  have  these  packages  J 
exempted  up  to  6 ounces.  That  would  be  convenient  and  nobody  | 
would  be  defrauded  by  it. 

The  Chairman.  Is  there  anything  further  that  you  desire,  gentle- 
men? It  is  only  a short  time  now  before  I have  to  go  on  the  floor 
of  the  Senate. 

Mr.  Lannen.  We  do  not  want  to  delay  you  any  longer.  Thank 
you  very  much. 

The  committee  thereupon  adjourned. 


X 


AMENDMENT  TO  PURE-FOOD  LAW 


HEARING 


BEFORE  THE 

COMMITTEE  ON  MANUFACTURES 
UNITED  STATES  SENATE 

SIXTY-SECOND  CONGRESS 

SECOND  SESSION 

ON 

S.  4727 

A BILL  TO  AMEND  SECTION  8 OF  AN  ACT  ENTITLED  “ AN  ACT  FOR 
PREVENTING  THE  MANUFACTURE,  SALE,  OR  TRANSPORTATION 
OF  ADULTERATED  OR  MISBRANDED  OR  POISONOUS  OR 
DELETERIOUS  FOODS,  DRUGS,  MEDICINES,  AND 
LIQUORS,  AND  FOR  REGULATING  TRAFFIC 
THEREIN,  AND  FOR  OTHER  PURPOSES,” 

APPROVED  JUNE  30,  1906 


MAY  16,  1912 


Printed  for  the  use  of  the  Committee  on  Manufactures 


PART  3 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 
1912 


COMMITTEE  ON  MANUFACTURES. 

United  States  Senate. 


WELDON  B.  HEYBURN,  Idaho.  Chairman. 


GEORGE  T.  OLIVER,  Pennsylvania. 
WILLIAM  LORIMER,  Illinois. 

ROBERT  M.  LA  FOLLETTE,  Wisconsin. 
ALBERT  B.  CUMMINS,  Iowa. 

GEORGE  P.  MCLEAN,  Connecticut. 


ELLISON  D.  SMITH,  South  Carolina. 
JAMES  A.  REED,  Missouri. 

ATLEE  POMERENE,  Ohio. 

JAMES  A.  O’GORMAN,  New  York. 
HOKE  SMITH,  Georgia. 


II 


Addison  T.  Smith,  Idaho,  Clerk. 


AMENDMENT  TO  PURE-FOOD  LAW. 


37 


THURSDAY,  MAY  16,  1912. 

Committee  on  Manufactures, 

United  States  Senate, 

Washington , D.  C. 

The  committee  met,  pursuant  to  notice,  at  10*30  o’clock  a.  m.,  for 
the  purpose  of  further  considering  the  bill  (S.  4727)  entitled  “A  bill 
to  amend  section  8 of  an  act  entitled  ‘An  act  for  preventing  the  manu- 
facture, sale,  or  transportation  of  adulterated  or  misbranded  or  poison- 
ous or  deleterious  foods,  drugs,  medicines,  and  liquors,  and  for  regu- 
lating traffic  therein^  and  for  other  purposes,’  approved  June  30, 
1906.” 

Present:  Senators  Hey  burn  (chairman),  Cummins,  O’Gorman, 
Smith  of  South  Carolina,  and  Smith  of  Georgia. 

There  were  also  present:  Mr.  Edwin  F.  Fobes,  president  of  the 
National  Confectioners’  Association  and  president  of  the  New  Eng- 
land Confectionery  Co.,  of  Boston,  Mass.;  Mr.  Henry  Heide,  of  New 
York  City,  representing  the  National  Confectioners’  Association;  and 
Mr.  Herman  W.  Hoops,  of  New  York  City,  representing  the  National 
Confectioners’  Association. 

The  Chairman.  The  attendance  of  the  committee  is  not  full  this 
morning,  but  we  will  proceed  to  hear  your  statement,  and  other  mem- 
bers of  the  committee  will  be  coming  in. 

Mr.  Edwin  F.  Fobes,  president  of  the  National  Confectioners’ 
Association  and  president  of  the  New  England  Confectionery  Co.,  of 
Boston,  Mass.,  is  here.  The  committee  will  be  glad  to  hear  what  you 
have  to  say  in  regard  to  this  measure  under  consideration,  Mr.  Fobes. 

STATEMENT  OF  MR.  EDWIN  F.  FOBES,  PRESIDENT  OF  THE 

NATIONAL  CONFECTIONERS’  ASSOCIATION  AND  PRESIDENT 

OF  THE  NEW  ENGLAND  CONFECTIONERY  CO.,  OF  BOSTON, 

MASS. 

Mr.  Fobes.  Mr.  Chairman  and  gentlemen  of  the  committee,  I,  as 
representing  the  national  association,  would  say  that  we  have  some 
400  members  throughout  the  country,  that  the  industry  has  about 
2,000  manufactories,  and  that  the  last  census  return  causes  us  to 
believe  that  at  the  present  time  there  are  about  50,000  employees  and 
about  $100,000,000  investments  and  about  $150,000,000  of  products 
by  the  manufacturers. 

This  does  not  include  the  retail  dealers  or  distributors  or  any  allied 
interests;  simply  the  manufacturers. 

My  own  company  is  an  organization  with  $1,000,000  capital  and 
doing  a very  large  business,  distributed  all  over  the  country,  including 
some  export  business. 

Senator  Cummins.  I do  not  understand  the  business  in  which  you 
are  engaged. 

Mr.  F 'obes.  Confectionery  business. 

The  Chairman.  This  in  the  Burton  bill. 

Mr.  Fobes.  We  are  in  favor  of  the  bill  as  proposed,  in  a general  way ; 
that  is,  we  believe  in  honest  statements  and  honest  goods;  and  as 
applied  to  the  larger  packages  it  is  possible  for  us  to  complv  with 

the  bill. 

The  Chairman.  You  think  it  is  impossible? 


38 


AMENDMENT  TO  PURE-EOOD  LAW. 


Mr.  Fobes.  It  is  possible. 

The  Chairman.  As  to  the  larger  packages  ? 

Mr.  Fobes.  Yes,  sir;  as  to  the  larger  packages,  although  we  have 
some  serious  problems.  For  instance,  there  are  many  goods  which 
are  retailed  by  the  dealer  at  from  5 to  10  pieces  for  a penny;  such 
goods  as  these  [indicating].  These  are  Easter  eggs.  Such  goods  as 
these  are  packed  in  cartons  which  contain  an  estimated  count  of  what 
will  yield  the  dealer  SI,  and  in  getting  at  that  estimated  count  we 
sometimes  might  have  in  one  kind  of  egg  4 pounds  and  3 ounces  and 
in  another  kind  4 pounds  and  6 ounces.  Whichever  way  it  is  it 
would  not  be  essential  to  the  retail  dealer;  but  it  is  essential  that  he 
gets  the  count  that  will  yield  him  $1,  or  else  he  is  liable  to  be  deprived 
of  his  profits.  It  will  be  quite  a problem  to  us  to  label  such  goods, 
for  it  is  almost  manifestly  absurd  to  attempt  to  label  one  package 
1 pound  and  2 ounces  and  another  package  1 pound  and  6 ounces. 

The  Chairman.  Do  you  make  any  statement  on  that  box  or  on  the 
wrapping  or  in  connection  with  it  as  to  the  weight  ? 

Mr.  Fobes.  No,  sir;  we  do  not  at  the  present  time. 

The  Chairman.  What  do  you  call  it — a package? 

Mr.  Fobes.  Yes,  sir;  one  box. 

The  Chairman.  I mean  to  the  ultimate  purchaser  ? 

Mr.  Fobes.  We  call  it  to  the  trade,  “One  box  of  Easter  eggs,  ” five 
for  a cent. 

The  Chairman.  That  is  not  so  material,  as  the  question  of  what 
you  name  it  to  the  child  who  purchases  it  or  to  the  person  who  con- 
sumes it. 

Mr.  Fobes.  They  buy  them  bv  the  count.  The  child  sees  the  card 
in  the  box,  which  says,  “Five  for  1 cent.” 

The  Chairman.  That  is,  five  of  those  pieces  of  candy  for  1 cent? 

Mr.  Fobes.  Yes,  sir. 

The  Chairman.  They  are  retailed  out  of  the  box  ? 

Mr.  Fobes.  Yes,  sir;  counted  by  the  retail  dealer. 

The  Chairman.  That  would  not  be  selling  by  “package,”  and 
would  not  come  within  the  purview  of  this  bill. 

Mr.  Fobes.  No,  sir. 

Senator  O’Gorman.  As  the  package  does  not  reach  the  consumer? 

Mr.  Fobes.  No,  sir.  But  the  package  that  the  manufacturer 
delivers  to  the  retailer  would  come  within  the  purview  of  this  law,  and, 
therefore,  we  have  a difficult  problem  before  us. 

Senator  Cummins.  The  consumer  does  very  often  buy  packages  of 
candies  of  this  sort,  does  he  not  ? 

The  Chairman.  Yes. 

Mr.  Fobes.  Yes,  sir.  Now,  when  we  get  down  to  packages  which 
sell  for  15  cents 

Senator  O’Gorman.  Pardon  me,  right  there.  You  say  the  diffi- 
culty in  properly  indicating  the  weight  of  your  large  packages,  inas- 
much as  they  might  vary  from  4 pounds  3 ounces  to  4 pounds  6 
ounces,  that  that  circumstance  would  cause  you  some  embarrassment  ? 

Mr.  Fobes.  Yes,  sir;  and  some  inconvenience. 

Senator  O’Gorman.  It  would  not  cause  you  any  convenience  if 
you  labeled  the  package  at  4 pounds.  Then  you  would  be  giving 
some  surplus. 

Mr.  Fobes.  There  would  be  considerable,  for  it  would  not  be 
complying  with  the  law  to  make  a statement  in  that  way. 


AMENDMENT  TO  PURE-FOOD  LAW. 


39 


Senator  O’Gorman.  That  would  simply  be  specifying  a minimum 
weight. 

The  Chairman.  There  is  no  objection  to  making  a statement  of 
any  amount. 

Senator  Cummins.  That  would  not  be  permitted. 

Senator  O’Gorman.  Do  you  think  the  statute  as  framed  would 
prevent  it  ? 

Senator  Cummins.  Very  clearly.  It  is  against  the  letter  of  the 
statute — that  is,  the  letter  of  the  proposed  statute. 

The  Chairman.  We  will  take  the  facts  as  presented  by  these 
gentlemen;  then  we  will  consider  the  other  matter. 

Senator  Cummins.  No  dealer  would  want  to  do  it,  I take  it. 

Mr.  Fobes.  In  packages  of  goods  which  sell  for  15  cents  or  less 
per  package  at  retail  our  difficulty  becomes  very  great,  and  with 
regard  to  some  packages  it  will  be  impossible  to  comply  with  the  law. 

The  Chairman.  Pardon  me  right  there.  We  will  take  your  testi- 
mony in  regard  to  these  things  and  then  the  committee,  in  execu- 
tive session,  on  the  basis  of  the  facts  before  us,  can  consider  the 
question  as  to  whether  or  not  we  will  fix  a point  at  which  we  will 
start  to  apply  this  law;  that  is  to  say,  as  to  use  of  the  word  “ pack- 
age” and  the  designation  of  weight.  We  will  fix  those  things  in 
the  consideration  of  the  bill  later,  but  we  will  get  all  your  facts 
about  the  matter  first. 

Mr.  Fobes.  Yes,  sir.  From  the  manufacturer’s  point  of  view  the 
price  of  5 cents  or  10  cents  is  really  the  standard  of  the  package, 
and  is  the  measure,  from  the  manufacturer’s  point  of  view,  of  the 
weight  of  the  package;  and  the  varying  costs  of  materials  cause  us 
as  manufacturers  to  vary  the  size  of  those  packages  from  time  to  time, 
even  though  the  outside  of  the  package  may  be  the  same  and  it  may 
make  the  statement  of  5 cents  or  10  cents. 

Senator  Cummins.  In  what  respect  does  the  law  that  is  proposed 
differ  from  the  existing  law,  so  far  as  that  point  is  concerned  ? 

Mr.  Fobes.  The  existing  law  provides  that  if  a weight  is  stated  it 
must  be  an  accurate  and  correct  statement.  The  proposed  law,  as  I 
understand  it,  would  compel  us  to  put  a statement  of  weight  on  a 
package  like  this  [indicating]. 

The  Chairman.  If  it  is  sold  by  weight,  or  purports  to  be  sold  by 
weight.  If  it  is  sold  as  an  item,  then  do  you  think  the  provisions  of 
this  bill  would  require  that  item  to  be  described  as  to  its  weight  ? 

Mr.  Fobes.  1 had  so  understood  it  from  a reading  of  the  law. 

The  Chairman.  That  will  be  taken  into  consideration. 

Senator  Cummins.  It  might  be  so. 

Mr.  Fobes.  These  packages  [indicating]  are  not  exactly  the  same 
weight.  We  have  a standard,  and  we  comply  with  that  standard  as 
closely  as  possible.  These  candies  [indicating]  are  packed  so  many 
pieces  in  a box,  and  in  the  factory  a gauge  fixes  the  size  of  the  pieces, 
so  that  our  weights  will  be  reasonable  and  true  weights;  and  the  com- 
petition is  so  keen  that  the  consumer  knows  when  he  is  getting  good 
value  and  when  he  is  not. 

The  Chairman.  Those  items  in  many  instances  are  not  molded 
items  that  you  could  make  of  a given  weight;  they  are  dropped  items, 
very  often,  are  they  not  ? 

Mr.  Fobes.  Yes,  sir;  very  many  of  them  are.  For  instance,  in 
chocolate  creams,  while  we  mold  the  center  and  make  them  very 


40 


AMENDMENT  TO  PUKE-FOOD  LAW. 


accurately,  the  coating  of  chocolate  on  the  outside  is  likely  to  show 
considerable  variation. 

What  I have  said  would  apply  to  a very  large  line  of  these  packages, 
which  have  a tremendous  sale  and  are  commonly  sold  by  most 
manufacturers. 

The  Chairman.  Excuse  me  a minute.  I am  required  to  attend  a 
meeting  of  the  Committee  on  Finance  this  morning.  Senator  Cum- 
mins, will  you  be  here  and  preside  over  this  meeting  ? 

Senator  Cummins.  Yes. 

The  Chairman.  Other  Senators  will  be  in  later,  and  I shall  read 
what  you  have  to  say.  I am  sorry  to  have  to  leave  you. 

The  Acting  Chairman  (Senator  Cummins).  You  may  proceed,  Mr. 
Fobes. 

Mr.  Fobes.  I should  like  to  submit  a package  of  this  candy,  what 
we  call  a 5-cent  roll  of  wafers.  These  goods  are  lozenges,  and  the 
goods  are  cut  with  a die.  The  paste  is  run  through  rolls,  so  that  we 
can  gauge  the  thickness  of  it  accurately;  and  it  would  seem  that  it 
would  be  an  easy  matter  to  state  the  accurate  weight  on  these  goods. 

The  Acting  Chairman.  You  do  not  now  state  their  weight  or 
count  ? 

Mr.  Fobes.  No.  We  make  no  statement  whatever.  We  put  a 
card  in  the  package  advertising  that  they  can  be  sold  for  5 cents. 
That  is  as  far  as  we  go. 

In  the  packages  of  these  goods,  we  have  a gauge,  and  the  gauge  is 
filled  with  a number  of  these  lozenges,  so  that  the  roll  is  always 
exactly  the  same  in  length. 

When  it  comes  to  the  question  of  weight,  even  then  there  is  a varia- 
tion of  from  1J  to  3 per  cent  in  the  weight  of  the  goods,  caused  prob- 
ably, by  the  climatic  conditions  under  which  the  goods  were  made, 
or  a little  variation  in  the  strength  or  in  the  manipulation  of  the  gums 
which  are  combined  with  the  sugar  in  the  making  of  the  lozenges. 
So  that  what  I thought  at  first  sight  was  going  to  be  one  of  our  easiest 
problems  is  going  to  be  a difficult  one. 

If  we  should  be  allowed  to  put  a minimum  weight  on  the  packages, 
we  could  make  some  statement  safely. 

The  sales  of  these  candies,  of  candies  in  these  small  packages,  are 
very,  very  great.  There  are  probably  25,000,000  people  in  this  coun- 
try who  are  candy  eaters,  and  you  will  recognize  that  the  great  pro- 
portion of  them  buy  a very  great  deal  of  candy  by  the  nickle  and 
10-cent  package. 

Senator  O’  Gorman.  Twenty-five  million.  That  would  be  almost 
one  out  of  every  three  of  the  population. 

Mr.  Fobes.  Yes,  sir. 

The  Acting  Chairman.  One  out  of  every  four. 

Senator  O’ Gorman.  So  that  probably  it  would  be  more  accurate  to 
say  one  out  of  every  four. 

Mr.  Fobes.  I have  an  idea  that  it  is  more  than  that. 

Senator  O’ Gorman.  I should  say  that  that  is  probably  in  excess  of 
what  the  fact  is,  because  the  candy  eaters  are  principally  among  the 
children  and  young  women. 

Mr.  Fobes.  I beg  your  pardon.  It  is  among  all  classes  and  all  ages 
of  men  and  women. 

Senator  O’ Gorman.  Although  you  ought  to  know  more  about  it 
than  I do. 


AMENDMENT  TO  PUKE-FOOD  LAW. 


41 


Mr.  Heide.  You  had  better  ask  your  lady  friends  if  such  is  the  case. 
It  is  not  confined  to  children ; it  is  eaten  by  both  sexes  and  by  those  of 
all  ages. 

Mr.  Fobes.  For  the  reasons  that  I have  stated  I ask  that  some 
amendment  be  made  to  the  proposed  law  that  will  exempt  packages 
which  sell  for  11  cents  or  less  from  the  provisions  of  this  bill,  even 
though  you  would  ask  us  to  make  a statement  on  the  package  of  the 
selling  price,  in  order  to  include  the  exemption,  that  would  not  be 
objectionable  to  us,  although  it  would  take  some  time  for  us  to  com- 
ply with  such  a provision. 

Senator  O’  Gorman.  What  is  your  last  suggestion? 

Mr.  Fobes.  Even  though  the  statement  of  the  selling  price  on  the 
package  should  be  necessary  in  order  to  make  it  exempt  from  the 
statement  of  weight  or  count. 

I might  say  one  thing  further.  On  some  classes  of  goods 

ri  he  Acting  Chairman.  Let  me  ask  you  a question  there.  Have 
you  ever  heard  of  any  complaint  with  respect  to  short  weights,  short 
counts  in  your  goods  ? 

Mr.  Fobes.  No  sir;  not  on  our  goods,  the  goods  we  manufacture. 
It  has  been  our  practice  to  give  net  weight  whether  it  has  been  half- 
pound  or  1-pound,  or  5-pound  boxes.  It  has  always  been  our  prac- 
tice to  give  net  weights. 

The  Acting  Chairman.  Generally  speaking,  the  shorter  the  weights 
the  better. 

Mr.  Fobes.  I would  be  very  glad  to  invite  you  gentlemen  to  go 
into  any  large  manufactory  and  examine  the  packages.  That  is  the 
best  answer  we  can  give  you.  The  practice  is  no  different  with  the 
New  England  Confectionery  Co.  to-day  than  what  it  has  been  for  the 
past  25  or  40  years. 

As  I understand  your  bill,  any  one  of  these  pieces  of  goods  might  be 
considered  a package  of  confectionery.  It  is  a package  which  a child' 
buys.  It  would  seem  manifestly  absurd  to  attempt  to  weigh  a piece 
like  that  [indicating].  It  would  be  impracticable.  And  it  seems 
equally  absurd  to  mark  it  “one  stick”  or  “one  piece.”  The  same 
way  with  a little  roll  of  lozenges.  The  goods  are  all  in  sight  in  these 
particular  packages,  and  the  consumer  sees  just  what  he  is  buying. 
There  is  no  opportunity  for  fraud,  and  there  is  no  fraud  committed. 

It  seems  to  me  that  the  national  food  law  is  aimed  at  misrepresenta- 
tions and  harmful  adulterations. 

Senator  O’Gorman.  What  is  the  purpose  of  those  pieces  of  cloth 
you  have  in  that  box  [indicating]  ? 

Mr.  Fobes.  These  pieces  here  [indicating]? 

Senator  O’Gorman.  Yes. 

Mr.  Fobes.  I simply  put  them  in  to  keep  the  candy  from  shaking 
about.  They  are  simply  some  pieces  of  cotton  wadding. 

Senator  O’Gorman.  About  what  proportion  of  your  sales  represent 
bulk  quantities — say  by  the  barrel  or  the  half  barrel  and  boxes  of 
candy  ? 

Mr.  Fobes.  Well,  I should  think  that  the  New  England  Confec- 
tionery Co.  were  manufacturers  of  staple  goods  to  a greater  extent 
than  most  other  manufacturers,  and  I should  think  probably  60  or  65 
per  cent  of  our  goods  were  bulk  goods. 

Senator  O’Gorman.  And  by  “bulk”  you  mean,  as  I have  indicated, 
sending  off  a large  box  or  a barrel  or  a half  a barrel  ? 


42 


AMENDMENT  TO  PURE-FOOD  LAAV. 


Mr.  Fobes.  Yes,  sir.  A 5-pound  pail,  a 30-pound  pail,  a 15-pound 
pail,  and  barrels  and  half  barrels. 

Senator  O’Gorman.  And  you  sell  these  to  the  retail  dealers? 

Mr.  Fobes.  No,  sir;  to  the  jobbing  dealer,  and  he  redistributes 
them  to  the  retailer.  We  have  very  little  dealings  with  the  retail 
dealers. 

Senator  O’Gorman.  You  see  no  objection  to  the  provision  of  this 
law  with  reference  to  your  bulk  trade  ? 

Mr.  Fobes.  No,  sir;  none  whatever. 

Senator  O’ Gorman.  The  embarrassment  results  from  the  handling 
of  this  small-package  business  ? 

Mr.  Fobes.  Yes,  sir;  from  these  small,  petty  things,  which  are 
manifestly  impossible.  For  instance,  here  is  a piece  of  candy  called 
“Big  Lunch” — three  pieces  of  candy  in  a wrapper  for  1 cent? 

Senator  O’Gorman.  You  say  you  call  that  “The  Lunch”  ? 

Mr.  Fobes.  We  call  that  the  “Big  Lunch.”  It  is,  perhaps,  for  a 
child. 

Here  is  another  package  called  “Sweet  Smokes” — five  cigarettes 
in  a wrapper,  and  they  are  right  in  sight.  We  can  put  a label  on 
them  saying,  “Five  pieces,”  if  it  is  desirable. 

Senator  O’ Gorman.  It  would  seem  as  though  there  ought  to  be 
some  way  of  taking  out  small  items  like  those  from  the  operation  of 
the  statute. 

Mr.  Fobes.  Yes,  sir.  That  is  what  we  should  like  to  have  done. 

The  Acting  Chairman.  We  never  heard  any  complaint  of  any- 
body being  wronged. 

Senator  Smith  of  Georgia.  Where  the  things  were  purchased  byr 
sight. 

The  Acting  Chairman.  From  the  past  law  there  is  no  evil  to 
correct. 

Mr.  Fobes.  I would  like  to  call  your  attention  to  the  fact  that  a 
great  many  nuts  are  sold  by  the  package,  as  well  as  popcorn.  There 
is  not  much  use  to  weigh  a package  of  popcorn;  it  is  the  bulk  that 
you  desire  to  purchase.  And  the  same  thing  is  true  of  chewing  gum. 

Senator  Smith  of  Georgia.  And  of  ground  nuts;  they  are  sold  in 
just  a little  package  all  through  the  South. 

Mr.  Fobes.  Yes,  sir. 

The  Acting  Chairman.  If  you  wrap  candy  up  in  paper  you 
would  have  to  mark  its  length  and  diameter. 

Senator  O’Gorman.  There  has  not  been  any  abuse  or  Adce,  as 
Senator  Cummins  says,  to  be  corrected  with  reference  to  items  of  this 
class. 

The  Acting  Chairman.  That  is  not  what  the  bill  is  aimed  at. 

Mr.  Fobes.  We  thought  it  only  fair  that  we  should  state  our  posi- 
tion ; and  we  should  like  to  have  a law  which  it  would  be  practicable 
for  us  to  comply  with,  rather  than  one  that  we  could  not  comply 
with  without  a great  deal  of  hardship. 

The  Acting  Chairman.  I do  not  know  about  it,  but  I think  it 
arose  largely  to  cover  some  supposed  grievances  in  canned  goods, 
where  there  was  a shortage  in  weight — short  weights. 

Senator  O’Gorman.  Yes;  and  then  in  cereals,  also.  Some  of  them 
are  sold  by  pound  weight,  and  they  are  done  up  in  a package,  and 
you  get  less  than  a pound  weight. 


AMENDMENT  TO  PURE-FOOD  LAW. 


43 


The  Acting  Chairman.  Yes;  and  coffee.  They  pretend  to  sell 
a pound  of  coffee,  and  it  does  not  contain  a pound. 

Mr.  Fobes.  That  is  fraud. 

There  is  one  thing  further  I might  say  that  might  cause  some 
annoyance  at  the  same  time,  and  that  is  the  shrinkage  that  takes 
place  in  the  weight  of  many  kinds  of  confectionery,  particularly  if 
it  is  shipped  into  a dry  climate. 

Senator  O’Gorman.  It  evaporates,  I suppose? 

Mr.  Fobes.  Yes,  sir. 

The  Acting  Chairman.  The  bill  contains  some  latitude  in  that 
respect. 

Mr.  Hoops.  If  you  ship  them  into  dry  climates  they  evaporate;  if 
you  ship  them  to  Jersey,  for  instance,  they  increase  in  weight. 

Mr.  Fobes.  That  is  so.  That  is  so  with  these  rolls  of  lozenges; 
they  will  change  quite  perceptibly. 

Senator  O’ Gorman.  What  is  the  highest  selling  price  of  any  of 
these  articles  that  you  have  called  to  our  attention- — that  is,  the 
highest  selling  price  to  the  public  ? 

Mr.  Fobes.  For  the  purpose  of  making  this  exhibit  I have  not 
taken  anything  above  10  cents.  Everything  here  retails  from.  1 cent 
to  10  cents. 

Senator  O’Gorman.  From  1 cent  to  10  cents? 

Mr.  Fobes.  Yes,  sir. 

There  being  no  further  questions,  Mr.  Fobes  was  thereupon  excused. 

The  Acting  Chairman.  We  will  now  hear  from  the  next  gentleman. 

STATEMENT  OF  MR.  HENRY  HEIDE,  REPRESENTING  THE  NA- 
TIONAL CONFECTIONERS’  ASSOCIATION,  OF  NEW  YORK  CITY. 

Mr.  Heide.  Mr.  C hairman  and  gentlemen  of  the  committee,  I desire 
to  say  that  the  confectionery  interests  of  the  country  have  no  objec- 
tion to  the  weights  being  marked,  or  even  to  the  counts  being  marked, 
on  the  larger  packages. 

I understood  you,  Senator,  to  ask  the  question  before  whether  we 
had  heard  of  short-count  goods.  The  short-count  goods  proposition 
has  found  its  way  into  the  business  for  some  years,  and  that  was 
because  the  retail  trade  wished  to  buy  packages  which  they  could 
buy  for  less  money  than  formerly.  Formerly  the  original  penny 
package  contained  either  100  or  a gross  to  the  box.  The  gross  propo- 
sition has  gone  out  of  the  market  for  many  years,  so  that  it  was  then 
100.  Those  100  goods  were  sold  to  the  retail  people  at  60  cents  a 
box,  so  that  they  made  a profit  of  40  per  cent  on  those  goods,  or 
rather  40  cents  on  a hundred. 

Senator  O’Gorman.  That  is  where  each  unit  of  the  100  could  be 
sold  for  a penny  ? 

Mr.  Heide.  Yes;  that  is  right.  As  those  small  stores  multiplied 
and  a good  many  could  not  buy  as  large  a variety  as  100  in  a box, 
they  desired  to  have  smaller  packages;  so  that  they  came  to  pack  72 
and  50  and  even  less  into  a box — the  profits  for  those  packages 
naturally  being  in  accordance  with  the  number  of  pieces  which  were 
in  those  boxes. 

Now,  it  may  be  that  some  unscrupulous  manufacturers  may  have 
taken  advantage  of  selling  goods  without  stating  how  many  pieces 
there  were  in  those  boxes. 


44 


AMENDMENT  TO  PURE-FOOD  LAW. 


The  confectionery  trade,  the  larger  manufacturers,  and  in  fact  no 
manufacturer  desires  to  sell  short-count  goods  under  the  pretense 
that  they  contain  more  than  they  actually  do  contain.  We  are, 
therefore,  fully  satisfied  to  put  on  the  actual  count  which  is  contained 
in  these  boxes — 72,  36,  or  whatever  the  number  may  be.  So  that 
there  is  no  objection  to  that. 

But  when  it  comes  to  these  small  packages,  such  as  Mr.  Fobes  has 
shown  you,  selling  all  the  way  from  1 cent  to  10  cents  or  possibly  a 
little  more,  then  it  is  very  difficult  to  comply  with  such  a law.  The 
fact  is,  gentlemen,  while  it  would  place  a hardship  and  a very  onerous 
burden  upon  the  manufacturer,  I am  sure  that  the  buyer,  the  retail 
buyer,  would  not  pay  any  attention  to  it. 

For  instance,  here  is  a package  which  I put  up,  called  “Heide’s 
mint  jujubes.”  Here  is  another  package  called  “ licorice  pastilles.” 
Now,  these  goods  we  sell  by  the  package.  If  we  are  compelled  to 
put  a weight  on  these  goods,  you  can  realize  how  troublesome  it  will 
be.  These  packages  are  packed  always  the  same;  they  are  always 
filled  up. 

Senator  Smith  of  Georgia.  What  are  those  small  packages  worth? 

Mr.  Heide.  Five  cents. 

Senator  Smith  of  Georgia.  What  figure  or  price  as  a limit  would 
protect  the  small  packages  ? 

Mr.  Heide.  What  we  desired  in  the  State  of  New  York,  and  what 
Mr.  Reichman,  the  commissioner  of  weights,  and  others  were  in  favor 
of  was  a 6-ounce  package  which  might  sell  as  high  as  25  cents  a 
package.  Of  course  that  would  depend  entirely  upon  the  quality 
of  the  goods  which  are  put  into  the  package.  If,  for  instance,  you 
have  a 6-ounce  package  of  chocolates,  that  would  certainly  represent 
a value  of  25  cents;  but  if  the  goods  are  of  a cheaper  nature  naturally 
the  package  would  not  represent  so  much  value;  but  a law  has  since 
been  passed  in  the  State  of  New  York,  I believe,  which  exempts  up 
to  3 ounces.  Is  that  not  so,  Mr.  Hoops  ? 

Mr.  Hoops.  The  law  exempts  up  to  3 ounces. 

Mr.  Heide.  It  exempts  all  packages  up  to  3 ounces.  If  we  could 
get  something  of  that  kind  we  would  be  perfectly  satisfied. 

Senator  Smith  of  Georgia.  You  think  a limitation  as  to  weight, 
rather  than  as  to  value  is  the  limitation  that  would  guard  against 
injury  ? 

Mr.  Heide.  That  is  what  we  would  prefer.  If  we  could  get  a bill 
which  would  exempt  everything  below  11  cents,  so  it  would  exempt 
10-cent  packages,  of  course  it  would  be  satisfactory  to  us. 

If  it  is  to  stipulate  weights,  we  would,  of  course,  prefer  to  exempt 
weights  up  to,  say,  a quarter  of  a pound.  From  that  on  the  weight 
can  easily  be  put  on  the  package,  because  the  package  would  then 
warrant  the  manufacturer  going  to  the  trouble  to  put  on  the  weight. 

Senator  Smith  of  Georgia.  Does  the  bill  apply  to  manufacturers  only  ? 

The  Acting  Chairman.  No. 

Mr.  Heide.  All  these  packages. 

Senator  O’Gorman.  You  see  in  the  present  act  the  words  are: 

If  in  package  form,  and  the  contents  are  stated  in  terms  of  weight  or  measure,  they 
are  not  plainly  and  correctly  stated  on  the  outside  of  the  package. 

That  offends  the  law.  That  is  proposed  to  be  amended  by  making 
it  compulsory  to  state  on  all  packages  the  correct  weight. 

The  Acting  Chairman.  Yes;  if  in  package  form. 


AMENDMENT  TO  PURE-FOOD  LAW. 


45 


Senator  O’Gorman.  The  amendment  reads: 

If  in  package  form,  the  quantity  of  the  contents  be  not  plainly  and  conspicuously 
marked  on  the  outside  of  the  package  in  terms  of  weight,  measure,  or  numerical  count. 

And  then  this  new  language  is  added: 

Provided , however , That  reasonable  variations  shall  be  permitted,  and  tolerances 
shall  be  established  by  rules  and  regulations  made  in  accordance  with  the  provisions 
of  this  act. 

Senator  Smith  of  Georgia.  A further  proviso  excepting  packages 
of  a certain  weight,  of  these  smaller  weights,  would  guard  against 
the  trouble  you  have  mentioned,  Mr.  Heide;  that  is,  providing  the 
packages  weighing  less  than  so  many  ounces  shall  not  be  subject  to 
the  provisions  of  this  law. 

Senator  O’ Gorman.  Yes.  Indeed,  it  would  be  a question  of  doubt 
as  to  whether  the  existing  law  should  be  altered,  because  the  existing 
law  seems  to  cover  the  actual  abuses — that  there  are  misrepresenta- 
tions on  the  package  as  to  its  contents.  The  existing  law  says  where 
the  weight  is  indicated  it  must  be  stated  correctly. 

The  Acting  Chairman.  This  changes  the  whole  policy  of  the  law. 

Senator  O’ Gorman.  And  introduces  this  last  provision  to  which  I 
have  called  your  attention  about  the  permitting  of  variations  and 
tolerances.  There  is  a very  grave  doubt  as  to  whether  that  is  a wise 
provision. 

Senator  Smith  of  South  Carolina.  By  what  process  would  you 
establish  what  would  be  a reasonable  variation  ? 

Senator  O’Gorman.  You  would  have  to  leave  it  to  some  department. 

Mr.  Hoops.  Yes;  and  that  is  where  the  trouble  would  come  in. 
We  would  always  be  having  trouble  with  the  department. 

Senator  O’ Gorman.  You  may  proceed,  Mr.  Heide. 

Senator  Smith,  of  South  Carolina.  After  your  semicolon  you  have 
there : 

And  tolerances  shall  be  established  by  rules  and  regulations  made  in  accordance 
with  the  provisions  of  this  act. 

Senator  O’ Gorman.  Mr.  Clerk,  I do.  not  quite  recall  the  circum- 
stances now,  but  Senator  Burton  stated  some  reason.  He  intro- 
duced this  amendment  and  he  gave  some  reason.  Do  you  recall 
what  it  was  ? 

The  Clerk.  No;  that  does  not  appear  in  the  record. 

Senator  O’Gorman.  We  have  had  witnesses  here. 

The  Clerk.  Yes,  we  have  had  witnesses  here,  but  that  does  not 
appear  in  the  record. 

Senator  O’ Gorman.  The  main  purpose  of  this  amendment  is  to 
provide  for  these  variations,  and  as  soon  as  you  provide  for  varia- 
tions you  introduce  an  element  of  uncertainty  into  the  statute. 

Mr.  Hoops.  That  is  the  point. 

Senator  O’Gorman.  In  a way  that  could  be  avoided,  probably,  by 
having  the  statute,  if  it  is  deemed  wise,  state  that  each  package  shall 
not  indicate  an  excess  weight  or  measure,  which  would  permit,  as  I 
said  a little  while  ago,  of  the  stating  of  the  minimum  weight. 

The  Acting  Chairman.  Let  me  suggest  that  as  we  shall  have  to 
adjourn  presently,  we  had  better  get  the  statements  of  these  gentle- 
men so  that  they  shall  not  have  to  come  back  again. 

Senator  Smith  of  South  Carolina.  I should  like  to  understand  this 
a little  better.  The  law  says: 

Third.  If  in  package  form,  and  the  contents  are  stated  in  terms  of  weight  or  measure, 
they  are  not  plainly  and  correctly  stated  on  the  outside  of  the  package. 


46 


AMENDMENT  TO  PUEE-EOOD  LAW. 


That  constitutes  an  offense  against  the  law. 

Senator  O’ Gorman.  That  is  the  existing  law. 

Senator  Smith  of  South  Carolina.  But  where  they  are  stated,  they 
must  be  stated  correctly. 

The  Acting  Chairman.  This  requires  them  to  be  stated. 

Senator  Smith  of  South  Carolina.  This  proviso  just  means  that 
where  they  are  stated  they  shall  be  stated  exactly,  with  a proviso  here 
that  reasonable  variations  may  be  permitted. 

The  Acting  Chairman.  The  present  law  does  not  require  the  con- 
tents to  be  stated  by  weight  or  measure  or  amount;  but  if  the  manu- 
facturer or  the  person  dealing  in  them  does  state  it,  he  must  state  it 
correctly.  The  amendment  proposed  by  Senator  Burton  makes  it 
compulsory  that  the  contents  shall  be  stated. 

Senator  Smith  of  South  Carolina.  With  this  proviso  ? 

The  Acting  Chairman.  With  that  proviso. 

Senator  Smith  of  South  Carolina.  Does  not  this  proviso  throw  it 
back  exactly  where  it  is  now  ? 

The  Acting  Chairman.  No;  because  if  a package  came  out  with- 
out this  statement  upon  it,  it  would  be  a violation  of  law,  unless  some 
bureau  officer  had  given  absolution. 

Senator  Smith  of  South  Carolina.  It  says  here: 

Provided,  however,  That  reasonable  variations  shall  be  permitted. 

The  Acting  Chairman.  But  then,  as  Senator  O’Gorman  has  sug- 
gested, the  bureau  officer  would  be  the  officer  to  determine  whether 
the  provision  was  reasonable. 

Senator  O’Gorman.  I now  recall  the  statement  made  by  a witness 
as  to  why  this  proposed  amendment  was  offered.  The  people  en- 
gaged in  the  large  trade,  who  are  now  subject  to  the  existing  law — 
people  who  have  to  indicate  their  weights  and  under  the  existing  law 
must  indicate  it  correctly — find  that  those  who  sell  cheap  articles,  like 
the  people  engaged  in  the  5 and  10  cent  store  business,  that  they 
escape  the  operation  of  the  statute  as  it  is;  and  to  bring  them  within 
the  influence  of  the  statute  this  amendment  is  proposed. 

Senator  Smith  of  South  Carolina.  I should  like  to  know,  if  you  are 
conversant  with  the  facts,  if  the  present  law  does  not  require  that  the 
weight  and  contents  shall  be  stated? 

Senator  O’Gorman.  It  makes  it  optional  with  the  seller,  but  if  he 
does  give  the  weight  he  must  state  it  correctly. 

Senator  Smith  of  South  Carolina.  That  is  the  existing  law  ? 

Senator  O ’ Gorman  . Yes . 

Mr.  Heide.  Gentlemen,  here  I show  you  a so-called  chocolate-cream 
bar  which  sells  for  2 cents  retail.  Here  is  a similar  article  in  the 
form  of  a cake,  a chocolate-cream  cake,  which  sells  for  5 cents  a cake. 
In  these  packages  when  materials  are  cheap,  particularly  chocolate, 
we  can  give  more  for  the  money  than  we  can  when  these  articles 
are  very  high.  Such  was  the  case  two  years  ago  when  chocolate  was 
nearly  double  the  present  price.  On  occasions  of  that  kind  we  natu- 
rally have  to  reduce  the  package  to  some  extent;  otherwise  we  would 
lose  money. 

If  we  are  compelled  to  put  the  net  weight  on  those  packages,  and 
it  should  come  to  pass  that  we  have  to  pay  more  than  the  usual 
market  price  for  our  raw  materials- — for  sugar,  for  instance — as  we  did 
last  year,  then  we  would  have  to  have  new  labels  every  time  such  a 
variation  takes  place. 


AMENDMENT  TO  PURE-FOOD  LAW. 


47 


So  far  as  serving  the  public  is  concerned,  unless  I as  a manufac- 
turer do  not  give  the  buyer  the  proper  proportion  which  he  is  enti- 
tled to  for  his  money,  then  my  friend,  Mr.  Fobes,  will  step  in  and 
offer  a larger  piece,  and  I am  out  of  the  market.  These  things  really 
regulate  themselves.  The  law  of  business  protects  the  buyer  in 
these  things,  because  competition  takes  place.  I have  to  do  the 
best  I can,  otherwise  I shall  be  out  of  business  before  I know  it. 

Now,  then,  when  we  come  to  other  articles  such  as  Mr.  Fobes  has 
referred  to,  such  as  goods  which  are  losing  in  weight,  here  is  an  arti- 
cle which  is  called  “ marsh  mallows.”  They  are,  as  perhaps  the 
gentlemen  know,  soft  goods,  and  they  are  likely  to  dry  out  to  a con- 
siderable extent.  These  packages  contain  about  2J  ounces,  net 
weight,  without  the  interior  covering  and  the  outside  box.  If  this 
package  is  sent  to  the  Pacific  coast  or  to  any  of  our  climes  which  are 
apt  to  be  dry,  the  weight  of  this  package  would  probably  be  reduced 
within  a comparatively  short  time  to  2 ounces  net  weight.  Now, 
then,  if  I should  be  compelled  to  mark  the  weight  on  the  outside  of 
the  package,  and  the  contents  should  weigh  when  I packed  them, 
say,  two  and  a quarter  or  two  and  a half  ounces,  or  whatever  it  may 
be,  and  they  would  go  to  Colorado  or  to  the  coast  or  to  any  of  our 
Western  States  where  they  have  a dry  atmosphere  and  they  should 
shrink  to  that  extent,  Henry  Heide  would  be  looked  upon  as  a rascal, 
and  under  this  law  he  would  not  be  an  honest  man.  That,  of  course, 
should  be  guarded  against. 

There  are  many  other  goods  which  we  are  putting  up  in  bulk; 
and  even  these  goods  [indicating]  we  put  up  in  bulk,  4 pounds  to  the 
box;  or  we  put  up,  for  instance,  gum  drops,,  either  the  genuine  gum 
drops,  which  are  made  of  gum  arabic,  or  the  lower  priced  gum  drops, 
which  consist  principally  of  corn  sirup — all  these  goods  are  apt  to 
shrink.  If  they  stand  on  the  shelves  of  our  buyers  for  two  or  three 
months  they  may  shrink  2 or  3 or  4 ounces  a box. 

Senator  Smith  of  South  Carolina.  Then  you  prefer  the  law  to  stand 
as  it  now  is  ? 

Mr.  Heide.  That,  of  course,  would  suit  us  better.  But  under- 
stand, Senator,  that  we  are  marking  all  our  larger  packages;  we  mark, 
for  instance,  5 pounds,  because  we  put  5 pounds  in  these  regular 
boxes.  The  standard  box  in  the  confectionery  line  is  5 pounds. 

Senator  Smith  of  South  Carolina.  Then  you  are  willing  to  stand  by 
the  5 pounds  that  you  indicate  ? 

Mr.  Heide.  So  far  as  we  are  conscientiously  concerned,  yes,  sir. 
But  suppose  these  goods  should  stand  on  the  shelves  of  our  customers 
for  a long  time;  they  would  dry  out  by  reason  of  natural  conditions 
over  which  we  have  no  control.  What  can  we  do  ? But,  of  course, 
the  law,  I believe,  provides  that  a reasonable  allowance  should  be 
made  for  these  occurrences. 

Senator  O’Gorman.  That  is  in  this  proposed  amendment. 

Senator  Smith  of  South  Carolina.  I am  speaking  of  the  law  now. 

Mr.  IIeide.  That  ought  to  remain  that  way. 

Senator  Smith  of  Georgia.  If  it  is  not  in  the  present  law  you  think 
it  is  especially  desirable  that  we  should  amend  the  present  law  so  as 
to  provide  for  that  ? 

Mr.  Heide.  Yes,  sir. 

Senator  O’Gorman.  I do  not  think  that  that  would  be  necessary, 
as  I had  occasion  to  say  at  a former  hearing,  because  the  requirement 
of  the  present  law  as  to  the  correct  statement  on  the  outside  of  the 


48 


AMENDMENT  TO  PUKE-FOOD  LAW. 


package  of  the  quantity  or  weight  relates  to  the  time  when  that  box 
passes  out  from  the  manufacturer;  so  that  if  there  should  be  a varia- 
tion afterwards  it  could  not  affect  him.  He  is  only  held  to  his  act. 

Senator  Smith  of  Georgia.  It  only  applies  to  the  manufacturer 
at  that  time. 

Senator  Smith  of  South  Carolina.  Then  if  a package  goes  from  his 
factory  and  it  states  the  correct  weight  at  that  time,  or  the  weight 
has  not  been  ascertained  to  be  incorrect  at  that  time,  then  after  a 
period  has  elapsed  he  is  not  responsible  for  the  weight  on  the  package  ? 

Senator  O’Gorman.  If,  for  instance,  some  goods  leaving  Mr. 
Heide’s  factory  are  found  under  the  existing  law  one,  two,  or  three 
months  afterwards  to  weigh  less  than  indicated  on  the  package  the 
department  would  make  an  inquiry. 

Senator  Smith  of  South  Carolina.  Under  the  present  law  ? 

Senator  O’Gorman.  Under  the  present  law;  and  if  it  could  be 
shown  that  that  variation  was  probably  due  to  climatic  conditions — 
in  other  words,  if  it  could  be  shown  that  for  any  reason  there  was  no 
inaccuracy  in  the  weight  when  it  left  Mr.  Heide’s  factory,  then  there 
is  no  violation  of  law. 

Senator  Smith  of  South  Carolina.  That  is  the  present  law  ? 

The  Acting  Chairman.  I doubt  that,  although  I have  no  doubt 
that  would  be  its  practical  administration.  This  law  applies  not 
only  to  the  manufacturer,  but  it  applies  to  anyone  who  ships. 

Senator  Smith  of  South  Carolina.  That  is  the  very  point  that  I was 
getting  at. 

Senator  O’ Gorman.  Have  you  a copy  of  the  original  law? 

Lave  it  here.  Section  1 relates  to  the 


The  Acting 
manufacture. 


Chairman.  I hi 
Section  2 says: 


Sec.  2.  That  the  introduction  into  any  State  or  Territory  or  the  District  of  Columbia 
from  any  other  State  or  Territory  or  the  District  of  Columbia,  or  from  any  foreign  coun- 
try, or  shipment  to  any  foreign  country  of  any  article  of  food  or  drugs  which  is  adul- 
terated or  misbranded,  within  the  meaning  of  this  act,  is  hereby  prohibited;  and  any 
person  who  shall  ship  or  deliver  for  shipment  from  any  State  or  Territory  or  the  District 
of  Columbia  to  any  other  State  or  Territory  or  the  District  of  Columbia,  or  to  a 
foreign  country,  or  who  shall  receive  in  any  State  or  Territory  or  the  District  of 
Columbia  from  any  other  State  or  Territory  or  the  District  of  Columbia,  or  foreign 
country,  and  having  so  received,  shall  deliver,  in  original  unbroken  packages,  for  pay 
or  otherwise,  or  offer  to  deliver  to  any  other  person,  any  such  article  so  adulterated 
or  misbranded  within  the  meaning  of  this  act,  or  any  person  who  shall  sell  or  offer 
for  sale  in  the  District  of  Columbia  or  the  Territories  of  the  United  States  any  such 
adulterated  or  misbranded  foods  or  drugs,  or  export  or  offer  to  export  the  same  to  any 
foreign  country,  shall  be  guilty  of  a misdemeanor,  and  for  such  offense  be  fined  not 
exceeding  two  hundred  dollars  for  the  first  offense,  and  upon  conviction  for  each  sub- 
sequent offense  not  exceeding  three  hundred  dollars  or  be  imprisoned  not  exceeding 
one  year,  or  both,  in  the  discretion  of  the  court:  Provided , That  no  article  shall  be 
deemed  misbranded  or  adulterated  within  the  provisions  of  this  act  when  intended  for 
export  to  any  foreign  country  and  prepared  or  packed  according  to  the  specifications 
or  directions  of  the  foreign  purchaser  when  no  substance  is  used  in  the  preparation  or 
packing  thereof  in  conflict  with  the  laws  of  the  foreign  country  to  which  said  article 
is  intended  to  be  shipped ; but  if  said  article  shall  be  in  fact  sold  or  offered  for  sale  for 
domestic  use  or  consumption,  then  this  proviso  shall  not  exempt  said  article  from  the 
operation  of  any  of  the  other  provisions  of  this  act. 


Senator  O’ Gorman.  What  section  are  you  reading? 

The  Acting  Chairman.  Section.  2.  Now,  section  8 says,  and  that 
is  the  one  we  are  dealing  with  now : 

Sec.  8.  That- the  term  “misbranded,”  as  used  herein,  shall  apply  to  all  drugs,  or 
articles  of  food,  or  articles  which  enter  into  the  composition  of  food,  the  package  or 
label  of  which  shall  bear  any  statement,  design,  or  device  regarding  such  article,  or 
the  ingredients  or  substances  contained  therein  which  shall  be  false  or  misleading  in 


AMENDMENT  TO  PURE-FOOD  LAW. 


49 


any  particular  and  to  any  food  or  drug  product  which  is  falsely  branded  as  to  the  State, 
Territory,  or  country  in  which  it  is  manufactured  or  produced. 

That  for  the  purposes  of  this  act  an  article  shall  also  be  deemed  to  be  misbranded. 

Now  I turn  to  section  3,  which  says: 

Third.  If  in  package  form,  and  the  contents  are  stated  in  terms  of  weight  or  measure, 
they  are  not  plainly  and  correctly  stated  on  the  outside  of  the  package. 

I do  not  know  how  the  court  would  construe  that. 

Senator  Smith  of  South  Carolina.  That  means  in  any  stage  after 
it  leaves  him  until  it  gets  to  the  consumer. 

The  Acting  Chairman.  Anywhere. 

Senator  O’Gorman.  Because  the  person  intended  to  be  benefited 
is  the  consumer. 

The  Acting  Chairman.  I do  not  know  but  that  a court  would 
construe  it  that  if  originally  branded  correctly  any  changes  brought 
about  by  natural  conditions  would  not  be  within  the  statute,  but  it 
does  not  say  so. 

Senator  Smith  of  South  Carolina.  Does  it  not  seem  to  the  com- 
mittee that  that  would  be  an  interminable  means  of  litigation,  if  one 
saw  fit  to  carry  it  out,  to  determine  either  by  atmospheric  conditions 
or  chemical  tests  as  to  the  evaporative  or  other  characteristics  of  the 
contents  of  that  package  ? 

The  Acting  Chairman.  There  may  be  decisions  upon  that  point; 
I do  not  know.  - 1 have  never  examined  them. 

Senator  Smith  of  South  Carolina.  Neither  have  I. 

The  Acting  Chairman.  But  plainly  if  a retail  dealer  would  buy  a 
package  containing  5 pounds,  and  so  marked  as  containing  5 pounds 
and  take  out  1 pound  and  then  sell  it  for  5 pounds,  he  would  be 
violating  the  statute.  Whether  he  would  be  violating  it  if  it  had 
diminished  by  natural  causes  I do  not  know. 

Senator  Smith  of  South  Carolina.  If  he  had  never  broken  the  pack- 
age and  would  sell  it  as  branded  and  the  consumer  were  to  weigh  it 
and  found  that  it  was  underweight  and  asked  for  redress  in  the  case 
of  less  weight,  how  would  you  tell  where  the  loss  occurred,  whether  in 
the  factory  or  in  transit  before  it  reached  the  consumer  ? 

The  Acting  Chairman.  Of  course  it  would  be  perfectly  clear  that 
the  manufacturer,  Mr.  Heide,  for  instance,  if  this  package  reached 
California  and  there  diminished  in  weight  under  the  influence  of  the 
climate  and  it  were  there  sold  containing  less  than  5 pounds,  he  would 
not  be  liable,  because  when  he  parted  with  it  it  would  be  accepted  as 
correct.  But  whether  the  man  who  sold  it  when  the  description 
became  incorrect  was  violating  the  law  is  another  matter. 

Senator  Smith  of  South  Carolina.  That  would  ultimately  react  on 
him  if  the  purchaser  did  get  into  trouble  as  to  the  short  weight  of  your 
package. 

Mr.  Hoops.  It  opens  the  door  to  a lot  of  trouble. 

The  Acting  Chairman.  Well,  you  may  proceed,  Mr.  Heide. 

Mr.  Heide.  As  I have  stated,  Mr.  Chairman,  some  of  these  goods 
are  apt  to  deteriorate  in  weight  on  account  of  climatic  conditions  and, 
as  stated  by  Mr.  Fobes,  others  are  likely  to  increase  in  weight.  It  all 
depends  upon  the  climate  into  which  they  find  their  way.  For  in- 
stance, even  these  lozenges,  which  are  made  bone  dry  before  they  are 
packed,  when  they  go  out  into  a dry  climate,  as  Mr.  Fobes  has  stated, 
they  may  lose  all  the  way  from  1£  to  3 per  cent,  whereas  if  they  go 
to  the  Jersey  coast  and  New  York  and  other  like  places  having  plenty 


50 


AMENDMENT  TO  PURE-FOOD  LAW. 


of  moisture  in  the  air  they  will  increase  in  weight;  they  naturally 
absorb  moisture. 

I do  not  know  what  further  I can  add  except  that  I have  also  a line 
of  samples  here  from  Huylers.  Here  is  a package  of  Huyler’s  choc- 
olate [indicating].  It  is  next  to  impossible  to  put  a weight  upon  a 
package  of  this  kind.  And  so  it  is  with  many  others. 

Senator  O’ Gorman.  What  would  be  the  price  of  that  article  which 
you  are  showing  us  now  ? 

Mr.  Heide.  I reckon  it  is  10  cents;  I really  do  not  know,  but  I 
should  say  10  cents. 

Senator  O’Gorman.  It  is  a package,  about  2J  inches  long  by 
two-thirds  of  an  inch  wide  and  probably  an  inch  in  diameter  ? 

Mr.  Heide.  Yes,  sir.  Here  is  a smaller  package  which  they  call 
“violet  dainties.”  That  probably  sells  for  10  cents.  They  fill  up 
these  boxes,  and  that  is  all  they  can  do  with  them.  There  are  a num- 
ber of  others  here. 

Senator  O’ Gorman.  That  package  that  you  have  just  referred  to 
was  about  the  size  of  an  ordinary  watch? 

Mr.  Heide.  Yes;  that  is  right,  Senator. 

Here  is  another  chocolate  package  which  sells  for  10  cents.  A 
package  of  this  kind  consists  of  five  different  pieces. 

Senator  Smith  of  South  Carolina.  If  I understand  you  correctly, 
you  would  like  to  have  the  present  law  remain  as  it  is,  with  the  proviso; 
that  is,  strike  out  making  it  compulsory  and  put  in  the  proviso  that 
reasonable  variations  may  be  permitted. 

Mr.  Heide.  Yes,  sir;  and  also  to  exempt  small  packages  up  to  10 
cents,  or,  rather,  say  11  cents,  so  that  anything  up  to  and  including 
10  cents  can  be  sold  without  any  weight  or  count  on  it  at  all. 

Senator  Smith  of  South  Carolina.  You  have  that  under  the 
present  law.  You  can  put  it  in  or  leave  it  out  just  as  you  choose. 

Mr.  Heide.  Here  is  a penny  package.  It  is  next  to  impossible  to 
brand  these  packages  with  the  weights;  and,  as  I have  stated,  the 
buyer  would  not  pay  any  attention  to  it.  Those  who  buy  these 
packages  know  that  they  are  a penny  package;  and  they  know  that 
this  [indicating]  is  a 5-cent  package,  and  they  buy  it  irrespective  of 
the  weight.  So  long  as  they  find  the  boxes  filled,  that  is  all  they 
expect  and  desire.  Putting  the  weight  upon  those  packages  would 
simply  be  an  additional  burden  upon  the  manufacturer  without  any 
result  whatsoever.  The  buyer  would  not  pay  any  attention  to  that 
at  all. 

I do  not  know  that  there  is  anything  further  that  I care  to  say. 

The  Acting  Chairman.  I think  the  committee  understands  fully 
that  proposition. 

Senator  Smith  of  Georgia.  Do  you  ship  large  packages,  too  ? 

Mr.  Heide.  We  ship  goods  in  barrels. 

Senator  Smith  of  Georgia.  You  ship  them  with  the  weight  marked 
on  them? 

Mr.  Heide.  The  weight  is  always  marked  on  them. 

Senator  Smith  of  Georgia.  Do  you  ship  to  the  wholesale  trade  or  to 
the  retail  trade  ? 

Mr.  Heide.  To  the  wholesale  trade. 

Senator  Smith  of  Georgia.  I think  this  statute  really  applies  to  the 
interstate  shipment,  and  if  there  is  a shrinkage  in  your  goods  before 
the  wholesale  merchant  ships  them,  I think  he  would  be  guilty.  I 


AMENDMENT  TO  PURE-FOQD  LAW. 


51 


think  the  statute — I have  been  reading  its  terms  pretty  carefully — 
does  not  simpty  apply  to  the  manufacturer;  but  it  applies  to  the  ship- 
ment and  to  the  wholesale  merchant,  or  whoever  engages  in  the  busi- 
ness crossing  the  State  line  from  one  section  to  another  with  it,  or 
rather  that  transaction  is  the  one  in  which  the  question  of  weight  is 
involved;  and  that  while  a subsequent  seller  would  be  guilty  for  sell- 
ing an  underweight  package,  that  that  underweight  would  have  to 
trace  back  to  the  interstate  shipment;  and  it  is  a question  as  to  what 
the  weight  was  at  the  time  of  the  interstate  shipment,  as  to  whether 
it  corresponded  to  the  figures  marked  on  the  package  or  not;  and  if 
this  shrinkage  can  take  place  between  the  date  of  manufacture  and  the 
date  of  shipment  by  the  wholesale  merchant,  I do  not  believe  the 
wholesale  merchant  under  this  law  would  be  exempt.  It  applies  to 
the  interstate  transaction.  Congress  can  not  control  the  New  York 
manufacturer,  for  instance,  because  that  might  be  an  intrastate 
transaction. 

Mr.  Hoops.  But  the  jobber  to  whom  Mr.  Heide  sells,  in  turn,  holds 
him  responsible. 

Senator  Smith  of  Georgia.  That  may  be  true,  but  that  is  a different 
proposition.  I was  seeking  to  find  the  meaning  of  this  law.  It  is 
applicable  to  the  weight  when  it  crosses  the  State  line. 

The  Acting  Chairman.  I think  probably  the  Supreme  Court  has 
not  limited  itself  quite  so  closely  as  that.  It  is  true  that  that  was 
held  in  the  famous  Knight  case,  a suit  brought  against  the  American 
Sugar  Refining  Co.  for  violation  of  the  antitrust  law.  But  I think 
subsequently  the  court  has  practically  overruled  that  decision.  I 
think  if  one  manufactures  interstate  products,  or  goes  into  the  busi- 
ness for  the  purpose  of  engaging  in  interstate  commerce,  that  the 
manufacturer  himself  may  be  held. 

Senator  Smith  of  Georgia.  Do  you  not  think  that  if  the  weight  were 
reduced  before  the  period  of  shipment,  and  at  the  time  of  the  inter- 
state shipment  it  was  below  weight,  it  would  be  a violation  of  law  ? 

The  Acting  Chairman.  I do. 

Mr.  Heide.  Gentlemen,  I should  like  to  say  one  more  word,  and 
that  is  that  it  is  very  desirable  that  your  body  should  give  the  best 
attention  to  the  passing  of  this  law,  for  the  reason  that  the  State  laws 
will  be  guided  by  what  you  do. 

There  being  no  further  questions,  Mr.  Heide  was  thereupon 
excused. 

The  Acting  Chairman.  Mr.  Hoops,  we  will  be  glad  to  hear  from 
you  now. 

STATEMENT  OF  MR.  HERMANN  W.  HOOPS,  REPRESENTING  THE 

NATIONAL  CONFECTIONERS’  ASSOCIATION,  OF  NEW  YORK 

CITY. 

Mr.  Hoops.  Mr.  Chairman  and  gentlemen  of  the  committee,  I do 
not  think  that  I can  add  anything  to  what  has  already  been  said,, 
except  that  we  would  like  this  law  changed  so  that  we  can  live  up 
to  it. 

Senator  O’Gorman.  You  say  you  would  like  the  law  changed  ? 

Mr.  Hoops.  Yes,  sir.  If  any  change  is  made,  we  should  like  it  made 
so  that  we  can  comply  with  it.  Do  not  ask  us  to  do  an  impossible 
thing.  As  an  illustration,  it  would  be  impossible  to  weigh  what  is 
44268— pt  3—12 2 


52 


AMENDMENT  TO  PURE-FOOD  TAW. 


in  that  little  thing  [indicating],  and  so  with  all  these  other  things 
[indicating]. 

Senator  O’Gorman.  You  are  now  referring  to  a package  about  the 
size  of  a 50-cent  piece  ? 

Mr.  Hoops.  Yes,  sir.  And  these  little  tiny  things  that  are  sold 
for  a penny  [indicating].  That  is  self-regulating. 

Senator  O’Gorman.  From  your  standpoint,  what  is  your  objection 
to  the  existing  law? 

Mr.  Hoops.  There  is  no  objection.  We  are  not  asking  for  a 
change. 

Senator  Smith  of  Georgia.  You  have  not  known  of  any  trouble 
from  the  variation  of  weights  ? 

Mr.  Hoops.  Not  at  all.  Not  up  to  this  time.  We  know  that  such 
a thing  exists,  but  the  trade  understands  it.  They  find  no  fault, 
because  the  package  is  sold  as  a 5-pound  package,  and  that  ends  it. 
but  I think  that  your  position  is  right.  I know  it  is  so  in  the  pure- 
food  law;  that  not  only  holds  the  man  who  sells  it,  but  that  also 
holds  the  manufacturer. 

The  Acting  Chairman.  This  is  the  pure-food  law. 

Mr.  Hoops.  Quite  true.  But  I say  in  adulterations  and  things  of 
that  kind  the  same  rule  works.  I do  not  want  to  take  up  any  more  of 
your  time.  I think  Mr.  Heide  and  Mr.  Fobes  have  covered  all  that 
can  be  said  on  the  subject.  But  in  regard  to  such  things  as  these 
sticks  of  candy  [indicating]  which  are  sold  for  a penny,  I do  not  see 
how  we  can  weigh  them. 

There  being  no  further  questions,  Mr.  Hoops  was  thereupon  ex- 
cused. 

Mr.  Fobes.  May  I say  just  one  word  more  ? 

The  Acting  Chairman.  Certainly. 

Mr.  Fobes.  If  the  Burton  amendment  should  be  passed  as  it  is,  the 
New  England  Confectionery  Co.  would  have  to  ask  for  several  hundred 
tolerances  right  away  in  order  to  comply  with  the  law,  and  we  would 
embarrass  the  department  in  our  requests  for  tolerances  from  the 
beginning,  I am  sure. 

I am  in  favor  of  a change  in  the  law,  and  principally  for  this 

reason — — 

Senator  O’Gorman.  You  say  you  favor  a change  ? 

Mr.  Fobes.  Yes,  sir. 

Senator  O’ Gorman.  What  change  ? 

Mr.  Fobes.  The  change  which  we  should  favor  would  be  in  the 
statement  that  it  is  compulsory  within  certain  latitudes,  and  prin- 
cipally for  this  reason,  that  several  State  legislatures  have  already 
passed  laws,  and  they  are  almost  all  different;  and  there  seems  to  be  a 
sentiment  in  many  parts  of  the  country  demanding  statements  of 
weights  on  packages,  and  in  order  that  we  may  develop  the  most 
uniform  scale  I should  prefer  to  see  the  National  Government  estab- 
lish some  reasonable  law  which  will  be  followed  by  the  States  as  State 
laws,  rather  than  to  have  the  States  each  make  a different  law,  and 
then  the  Federal  Government  come  along  some  years  afterwards  and 
make  some  law. 

There  being  no  further  questions,  Mr.  Fobes  was  thereupon  excused. 

The  Acting  Chairman.  The  committee  will  take  the  bill  under 
consideration. 

The  committee  thereupon  adjourned. 

X 


AMENDMENT  TO  PUREFOOD  LAW 


HEARING 


BEFORE  THE 

COMMITTEE  ON  MANUFACTURES 
UNITED  STATES  SENATE 

SIXTY-SECOND  CONGRESS 

THIRD  SESSION 


S.  4727 

A BILL  TO  AMEND  SECTION  8 OF  AN  ACT  ENTITLED  “AN  ACT  FOR 
PREVENTING  THE  MANUFACTURE,  SALE,  OR  TRANSPORTATION 
OF  ADULTERATED  OR  MISBRANDED  OR  POISONOUS  OR 
DELETERIOUS  FOODS,  DRUGS,  MEDICINES,  AND 
LIQUORS,  AND  FOR  REGULATING  TRAFFIC 
THEREIN,  AND  FOR  OTHER  PURPOSES,” 

APPROVED  JUNE  30,  1906 


JANUARY  30,  1913 


Printed  for  the  use  of  the  Committee  on  Manufactures 


PART  4 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 
1913 


COMMITTEE  ON  MANUFACTURES. 

United  States  Senate. 


GEORGE  T.  OLIVER,  Pennsylvania. 
ROBERT  M.  LA  FOLLETTE,  Wisconsin. 
ALBERT  B.  CUMMINS,  Iowa. 

.GEORGE  P.  McLEAN,  Connecticut. 
WILLIAM  P.  JACKSON,  Maryland. 

Addison  T.  Smith, 


, Chairman. 

ELLISON  D.  SMITH,  South  Carolina. 
JAMES  A.  REED,  Missouri. 

ATLEE  POMERENE,  Ohio. 

JAMES  A.  O’GORMAN,  New  York. 
HOKE  SMITH,  Georgia, 
i,  Clerk. 


II 


AMENDMENT  TO  PURE-FOOD  LAW. 


53 


THURSDAY,  JANUARY  30,  1913. 

Committee  on  Manufactures, 

United  States  Senate, 

W ashing  ton,  D.  G. 

The  committee  met,  pursuant  to  notice,  at  10.30  o’clock  a.  m.,  for 
the  purpose  of  further  considering  the  bill  (S.  4727)  entitled  “A 
bill  to  amend  section  8 of  an  act  entitled  ‘An  act  for  preventing  the 
manufacture,  sale,  or  transportation  of  adulterated  or  misbranded 
or  poisonous  or  deleterious  foods,  drugs,  medicines,  and  liquors,  and 
for  regulating  traffic  therein,  and  for  other  purposes,’  approved 
June  30,  1906.” 

Present:  Senators  Oliver  (acting  chairman),  Jackson,  Pomerene, 
and  O’Gorman. 

There  were  also  present:  Mr.  Edwin  F.  Fobes,  Mr.  Henry  Heide, 
and  Mr.  James  J.  Matched,  of  the  National  Confectioners’  Associa- 
tion, New  York;  Mr.  W.  M.  McCormick,  Baltimore,  Md.,  Mr.  R.  H. 
Bond,  Baltimore,  Md.,  Mr.  S.  J.  Sherer,  Chicago,  111.,  and  Dr.  S.  H. 
Baer,  St.  Louis,  Mo.,  of  the  Flavoring  Extract  Association;  Mr. 
Alfred  H.  Beckman,  secretary,  National  Wholesale  Grocers’  Asso- 
ciation, New  York;  Mr.  Dana  T.  Ackerly,  counsel,  National  Whole- 
sale Grocers’  Association,  New  York;  and  Mr.  John  A.  Green,  secre- 
tary, National  Association  Retail  Grocers,  Cleveland,  Ohio. 

The  Acting  Chairman.  The  committee  will  come  to  order.  As 
we  have  already  heard  from  the  representatives  of  the  National  Con- 
fectioners’ Association,  we  will  hear  first  from  Mr.  McCormick,  of 
the  Flavoring  Extract  Association.  Is  he  here? 

Mr.  McCormick.  Yes ; but  I did  not  expect  to  be  called  on  first. 

The  Acting  Chairman.  I think  you  had  better  proceed  now. 

STATEMENT  OF  MR.  W.  M.  M’CORMICK,  OF  M’CORMICK  & CO., 

BALTIMORE.  MD.,  REPRESENTING  THE  FLAVORING  EXTRACT 

MANUFACTURERS’  ASSOCIATION  OF  THE  UNITED  STATES. 

Mr.  McCormick.  Mr.  Chairman  and  Senators,  as  a manufacturer 
of  flavoring  extracts,  and  importer  and  grinder  of  spices,  and  also 
as  representing  the  Flavoring  Extract  Manufacturers’  Association  of 
the  United  States,  I wish  to  say,  first,  we  are  not  opposed  but  entirely 
favorable  to  a weights  and  measures  bill.  We  believe  it  necessary 
for  our  own  protection  as  manufacturers  as  well  as  for  that  of  the 
consumer.  In  this  our  attitude  is  entirely  sincere.  All  that  we  ask 
is  that  certain  minor  exceptions  that  in  no  way  militate  against  the 
rights  of  the  consumer,  or,  in  other  words,  a law  which  we  can  live 
up  to,  obey,  and  which  will  protect  us  from  prosecution,  and  from 
being  held  up  to  public  opinion  as  criminals  for  failure  to  techni- 
cally live  up  to  its  letter  when  in  many  instances  it  may  be  entirely 
impossible. 

I will  try  to  demonstrate  in  a few  words  why  we  ask  for  these 
exceptions,  or  examples,  as  you  may  term  them. 

To  show  you  some  of  the  difficulties  that  will  present  themselves 
to  the  manufacturer  and  prevent  strict  compliance  with  the  letter 
of  this  proposed  law,  I have  here  certain  bottles  which  I present: 
These  large  bottles  [indicating  a 16-ounce  bottle]  is  one  of  the  easiest 
of  its  class  to  make  from  the  standpoint  of  the  bottle  manufacturer. 


54 


AMENDMENT  TO  PURE-FOOD  LAW. 


They  are  not  bought  from  a cheap  factory,  but  from  one  of  the  best 
in  this  country,  the  Olean  Glass  Co.,  well  known  as  makers  of  high- 
class  bottle  ware.  They  are  shown  to  illustrate  how  the  bottles 
average  as  to  capacity  when  turned  out  from  the  factory  and  de- 
livered to  us  on  our  contracts.  This  bottle  [indicating]  holds  16 
ounces,  this  16  J ounces,  and  this  15 1 ounces.  They  were  all  taken 
from  the  same  case.  This  variation  is  caused  this  way:  A bottle 
blower  uses  a pipe  about  45  inches  long.  He  picks  up  the  melted 
glass,  rolls  it  on  the  smoother,  puts  it  in  a mold,  and  a boy  assistant 
shuts  it  up.  The  condition  of  the  melted  glass,  the  quantity  picked 
up,  and  to  a great  extent  the  quickness  with  which  it  is  handled  by 
the  blower  determine  the  capacity  of  the  bottle.  Sometimes  if  he 
is  tired  he  will  pick  up  more  glass,  or  less.  This  plastic  glass  is 
blown  from  the  molds,  and  the  first  of  the  run  of  bottles  will  be  of 
slightly  different  capacity  from  the  afternoon  run,  which  is  to  be 
expected,  because  there  is  no  way  for  the  blower  to  measure  the 
amount  of  glass  which  he  has  on  the  end  of  his  blowpipe. 

These  bottles  presented  are  from  actual  samples  picked  out  yester- 
day at  my  factory. 

The  Acting  Chairman.  Excuse  me,  Mr.  McCormick,  you  mention 
them  as  being  16  ounce,  16^  ounce,  etc.  They  are  intended  to  be  the 
same,  are  they? 

Mr.  McCormick.  Yes;  intended  to  contain  16  ounces,  and  we  buy 
them  with  that  understanding;  but  you  see  the  glass  men  will  not 
guarantee  exact  capacity. 

I have  here  a paragraph  in  relation  to  the  variation  which  they 
allow  the  blowers.  In  other  words,  they  must  be  scaled  up  a little 
high  or  lower.  May  I read  it  ? 

The  Acting  Chairman.  Yes. 

Mr.  McCormick  (reading)  : 

Manufacturers  shall  allow  one-quarter  ounce  each  way  from  one-half  to  6 
ounces  in  weight,  inclusive.  Above  6 ounces  to  12  ounces,  inclusive,  one-half 
ounce  each  way.  Above  12  ounces  to  32  ounces,  inclusive,  1 ounce  each  way. 
Above  32  ounces  to  40  ounces,  inclusive,  li  ounces  each  way.  Above  40  ounces, 
2 ounces  each  way. 

Senator  Pomerene.  What  is  that  you  are  reading  ? 

Mr.  McCormick.  That  is  the  rule  of  the  manufacturers  which  the 
glass  blowers  work  under,  and  it  is  recognized  throughout  the 
United  States  and  Canada.  In  other  words,  we  have  to  buy  and 
accept  bottles  subject  to  that  clause  if  they  are  shipped  to  us.  We 
might  say,  “ Do  not  those  bottles  run  less  than  16  ounces  ? ” They 
would  say,  “ How  much  less  ? ” If  the  variation  is  not  greater  than 
this  paragraph  provides,  we  have  to  accept  the  delivery,  because  we 
realize  they  can  not  make  them  absolutely  uniform  as  to  content. 
The  average  capacity  is  more  apt  to  run  over  the  standard  capacity 
than  less,  because  the  molds  wear  by  use,  and  on  the  average  the  capac- 
ity is  greater  than  less.  These  are  just  instances.  F ault  is  usually  not 
found  with  the  manufacturer  for  bottles  of  over  capacity,  but  on 
bottles  slightly  under  capacity  we  are  published  throughout  the 
country  as  trying  to  deceive. 

Senator  Pomerene.  Let  me  ask  you  a question  right  there,  if  it  will 
not  interrupt  you.  You  have  given  three  different  sizes  here,  which 
were  supposed  to  be  the  same.  What  proportion  of  the  bottles  which 


AMENDMENT  TO  PURE-FOOD  LAW. 


55 


you  purchase  from  the  glass  manufacturers  are  under  that  size — 
under  the  size  of  16  ounces  ? 

The  Acting  Chairman.  In  practice. 

Mr.  McCormick.  They  run  regularly;  that  is,  according  to  this 
rule,  so  nearly  regular  that  we  can  not  complain. 

Senator  O’Gorman.  Do  they  ever  run  up  above  16  ounces? 

Mr.  McCormick.  Yes;  I recently  examined  in  our  place  a case  of 
bottles,  and  here  is  exactly  the  result:  Bottles  were  like  this  [indi- 
cating]. I discussed  this  variation  with  the  Department  of  Agri- 
culture. They  had  asked  me  a question  about  this  matter,  and  I 
went  into  it  rather  fully.  Four  bottles  taken  from  the  top  layer 
held  16f  ounces  each.  There  are  two  layers  in  a case.  Two  bottles 
from  the  top  layer  held  15-J  ounces  each.  Eight  bottles  held  15^ 
ounces  each,  and  one  bottle  14J  ounces.  The  remainder  of  the  bottles 
ran  regularly  16  ounces. 

Senator  Pomerene.  How  many  ? 

Mr.  McCormick.  There  are  a gross  in  a case — or  72  bottles  in  each 
of  the  two  layers. 

Senator  Pomerene.  Was  that  case  selected  at  random? 

Mr.  McCormick.  Yes,  sir;  at  random;  and  I have  to  accept  them 
as  a valid  delivery  because  that  is  as  near  uniform  as  we  can  get 

them. 

It  would  be  all  right  if  these  bottles — one,  two,  and  three  [indi- 
cating]— were  packed  at  random  in  the  shipping  cases  by  the  fac- 
tory; but  this  is  not  the  case  and  can  not  be  from  a practical  stand- 
point. The  differences  are  not  so  great  particularly  in  the  large 
bottles  as  in  the  small.  I picked  out  half  a dozen  bottles  in  a case 
and  measured  them,  and  here  is  the  result : Some  held  16^  drams, 
some  17  drams.  These  bottles  were  intended  to  contain  16  drams 
each.  There  are  three  17  drams  each,  one  16  drams,  one  16f  drams, 
and  one  16 J drams. 

The  Chairman.  What  is  the  16  drams 

Mr.  McCormick.  Sixteen  is  the  correct  capacity.  They  all  run 
over  intended  capacity,  thought  they  are  blown  heavy  enough — that 
is,  each  bottle  contains  about  the  same  amount  of  glass.  The  weight 
is  approximately  in  accordance  with  the  order  I gave  the  manufac- 
turer for  glass  content  of  the  bottle.  I buy  them  on  weight  of  glass 
as  well  as  capacity. 

And  the  same  thing  occurs  in  the  small  bottles.  These  [indicat- 
ing] should  hold  each  6 drams.  They  actually  hold  6f,  5J,  5f,  6£, 
and  6 drams,  respectively.  You  see  one  only  is  of  correct  capacity, 
but  the  others  are  so  near  I had  to  take  them.  If  they  were  of 
greater  capacity,  it  would  be  all  right,  and  they  would  be  accepted 
under  the  contract.  If  every  one  of  these  short-weight  bottles  were 
not  blown  and  packed  together  they  would  average  up,  but  the 
blower  gets  tired,  and,  as  I told  you,  he  will  blow  heavy  bottles  or 
light  bottles  at  certain  times  of  the  day,  and  therefore  bottles  of 
different  capacity  in  the  morning  and  evening.  If  these  bottles  of 
short,  correct,  or  overcapacity  were  mixed  in  the  cases,  the  average 
might  be  satisfactory;  but  the  bottles  are  packed  direct  from  the 
mold  in  cases,  and  we  fill  them  direct  from  the  case  and  pack  in 
one  dozen  bottles,  which  may  all  be  slightly  overcapacity  bottles  or 
under.  If  they  were  all  mixed  up  I do  not  think  the  flavoring-extracl 


56 


AMENDMENT  TO  PUBE-F00D  LAW. 


people  would  complain.  But  when  three  or  four  bottles^  or  even 
half  a dozen  bottles  are  taken  as  an  average,  a great  injustice  is  done 
a manufacturer,  who  is  jerked  up  on  account  of -short  weight. 

The  Acting  Chairman.  Did  you  ever  try  buying  your  bottles  from 
a factory  which  uses  the  mechanical  blower? 

Mr.  McCormick.  You  can  not  to-day  get  these  panel  bottles  made 
by  machinery.  You  can  get  the  round  ones,  something  like  that 
[indicating],  but  I will  show  you  where  even  these  differ,  though 
they  are  made  b}^  machinery. 

The  Acting  Chairman.  Where  are  they  made,  at  Columbus? 

Mr.  McCormick.  These  are  made  at  Pittsburgh  by  one  of  the 
Owens  machines,  but  you  see  the  capacity  is  a little  different.  An- 
other thing  is  this — the  capacity  of  a blown  bottle  depends  on  the 
way  the  glass  is  distributed.  For  instance,  if  the  glass  is  largely 
blown  in  the  bottom  it  will  reduce  the  contents,  but  if  an  excess  of 
glass  is  put  up  here  in  the  mouth  [indicating]  you  can  see  that  the 
bottle  will  hold  more  and  yet  be  just  as  heavy  in  glass  on  account  of 
incorrect  distribution  of  glass. 

Without  taking  up  too  much  of  your  time,  I hope  I have  made 
myself  perfectly  clear.  It  is  simply  this,  Mr.  Chairman  and  Sena- 
tors, that  we  can  not  get  bottles  blown  absolutely  correct.  All  we  ask 
is  a law  drawn  on  broad  lines  that  will  be  fair. 

The  Acting  Chairman.  In  behalf  of  your  association,  Mr.  McCor- 
mick, have  you  a concrete  suggestion  ? What  would  you  suggest  ? 

Mr.  McCormick.  We  are  a unit  in  asking  that  we  be  not  required 
to  put  contents  on  the  5 and  10  cent  bottles.  We  are  willing  to  put 
contents  on  these  bottles  [indicating  1-pint  bottles],  because  we 
measure  their  contents  out  in  a graduate.  With  the  small  bottle  this 
is  utterly  impossible.  They  go  through  by  the  hundreds  of  thou- 
sands, and  the  profit  on  them  is  sometimes  less  than  I to  5 per  cent 
for  the  manufacturer  who  is  selling  them  Avith  his  goods,  and  must 
therefore  be  put  out  in  large  \7olume  to  enable  him  to  make  any 
money  whatever.  I should  like  to  see  bottles  of  2 ounces  capacity 
and  less  exempted.  On  anything  over  2 ounces  we  could  obey  the 
law  to  the  letter.  It  Avill  protect  us  just  as  much  as  it  will  the 
consumer.  But  Avhen  it  comes  down  to  a small  package,  we  are  up 
against  a proposition  in  which  it  is  impracticable  to  follow  the  law 
as  suggested. 

Here  is  another  illustration.  You  take  stick  cinnamon.  Some- 
times you  see  these  pieces  [illustrating]  are  very  thick  and  heavy 
and  at  other  times  they  are  thin.  They  also  come  in  more  or  less 
curled.  I ha\re  packed  these  cartons  [illustrating]  full.  I have  seen 
three  of  these  rolls  or  sticks  so  large  that  they  will  fill  one  of  these 
packages.  They  are  not  sold  by  weight.  It  looks  unfair,  I pre- 
sume, to  a customer,  but  hoAv  are  we  going  to  help  oursehTes?  I 
am  giving  you  just  our  troubles  as  they  present  themseDes  to  us 
daily. 

The  Acting  Chairman.  Is  that  package  of  stick  cinnamon  sup 
posed  to  be  sold  by  weight? 

Mr.  McCormick.  It  is  just  sold  as  the  best  possible  ATalue  of  5 
cents.  It  is  the  nicest  way  to  sell  this  spice,  because  Avhat  AATe  term 
the  rough  ends  are  cut  off,  and  AATe  use  them  for  grinding.  The  con- 
sumer gets  more  for  his  money  than  in  the  old-fashioned  way.  The 
same  thing  applies  to  sage  and  things  of  that  kind,  and  other  spices. 


AMENDMENT  TO  PUKE-FOOD  LAW. 


57 


Take  mace  [indicating]  for  a further  illustration.  Some  varieties 
of  mace  are  very  fat  and  heavy.  We  pack  these  cartons  full,  with  the 
result  that  the  packages  may  vary  a good  deal  in  weight.  It  depends 
on  how  it  is  grown.  At  times  mace  is  grown  a little  more  bulky  than 
at  others,  but  we  fill  the  package  full,  because,  you  know,  we  can  not 
afford  to  send  out  our  packages  half  full,  since  as  soon  as  you  do 
that  the  consumer  will  say  that  Mr.  Retailer  opened  that  package 
and  took  some  of  the  contents  out. 

The  same  thing  applies  to  ginger.  I have  just  brought  these 
samples  over  so  that  you  can  see  for  yourselves  what  we  are  really 
up  against.  There  are  certain  things  we  can  measure  out  to  a nicety 
and  the  weights  will  be  practically  uniform;  others  are  affected  by 
atmospheric  conditions  and  absorption  of  moisture  or  excessive  dry- 
ing out.  When  I ship  some  articles  out  they  may  weigh  2 ounces, 
but  when  they  have  been  out  for  six  months,  they  may  weigh  an 
ounce  and  a half,  and  to  make  a retailer  feel  that  I have  put  in  2 
ounces  to  start  with  is  a pretty  difficult  thing. 

The  Acting  Chairman.  Is  there  anyone  else  from  your  associa- 
tion, Mr.  McCormick,  who  desires  to  be  heard? 

Mr.  McCormick.  Yes,  sir;  Dr.  Baer,  the  secretary  of  the  associa- 
tion. 

STATEMENT  OF  DR.  SAMUEL  H.  BAER,  OF  THE  BLANKE-BAER 
CHEMICAL  CO.,  ST.  LOUIS,  MO. 

Dr.  Baer.  Mr.  Chairman  and  Senators,  I wish  to  supplement  what 
Mr.  McCormick  has  said  in  regard  to  the  packages,  but  if  you  will 
permit  me  I should  like  to  read  a letter  from  the  Illinois  Glass  Co., 
which  is  one  of  the  largest  manufacturers  and  which  makes  a spe- 
cialty of  these  small  bottles,  as  just  showing  you  what  we  have  to 
contend  with.  I wrote  to  them  about  the  matter,  and  they  say : 

Alton,  III.,  January  2k,  1913. 

Mr.  Samuel  H.  Baer, 

Second  Vice  President  Flavoring  Extract  Manufacturers'  Association , 

v St.  Louis,  Mo. 

Dear  Slr  : Referring  to  the  so-called  Gould  bill  that  is  now  under  considera- 
tion in  the  Senate  of  the  United  States  that  requires,  if  in  package  form,  the 
quantity  of  the  contents  be  marked  on  the  outside  of  the  package,  as  a manu- 
facturer of  bottles  in  large  quantities  your  attention  is  respectively  called  to 
certain  peculiarities  of  the  glass-bottle  business. 

It  is  a well-recognized  fact  that  no  glass  manufacturer  can  contract  to  fur- 
nish containers  of  exact  size  and  uniform  capacity — some  variation  is  una- 
voidable. 

They  are  the  largest  manufacturers,  and  if  they  can  not  do  it  I do 
not  believe  anyone  else  can. 

The  workmen,  for  necessary  reasons,  are  allowed  a certain  variation  in 
weight  when  making  bottles,  which  directly  affects  the  thickness  of  the  wall  of 
the  bottle,  and  as  the  container  is  made  a little  lighter  or  a trifle  heavier,  as 
the  bottle  contains  a little  more  or  a trifle  less  glass,  the  capacity  of  that  bottle 
is  thus  affected,  and  some  slight  variation  is  inevitable  for  these  reasons. 

Molds  in  which  the  bottles  are  blown  are  subject  to  wear  and  enlarge 
slightly  from  this  wear  and  the  cleaning  process.  Another  peculiarity  is  the 
fact  that  two  glass  bottles  made  in  the  same  mold  and  at  practically  the  same 
time,  containing  an  equal  amount  or  weight  of  glass,  may  vary  slightly  in 
capacity  through  different  distribution  of  the  glass  in  the  bottle,  and  the 
matter  of  distribution  is  one  that  can  not  be  regulated  exactly. 


58 


AMENDMENT  TO  PURE-FOOD  LAW. 


This  unavoidable  variation  in  capacity  is  recognized  in  many  ways.  In  the 
working  rules  agreed  upon  between  the  manufacturers  and  the  workmen, 
section  16  reads — • 

And,  as  you  probably  know,  there  was  a joint  committee  repre- 
senting both  the  manufacturers  and  workmen  who  were  engaged  in 
the  production  of  glass  containers  for  food  products,  which  filed  a 
memorandum  of  objections  against  certain  features  of  the  bill  under 
consideration,  H.  K.  27275,  and  giving  the  agreement  between  the 
workmen  and  the  manufacturers  of  glass  themselves,  and  the  clause 
read  by  Mr.  McCormick  was  the  one  they  abided  by,  the  manu- 
facturers to  allow  one-fourth  ounce  each  way  from  one-half  to  6 
ounces  in  Aveight,  inclusiA-e;  above  6-ounce  to  12-ounce,  inclusive,  one- 
half  ounce  each  way,  and  so  on  as  the  size  increases — 

Certain  branches  of  the  Government  haAre  officially  recognized  that  some 
allowance  for  reasonable  A’ariation  must  be  made  from  a given  standard — see 
circular  No.  681,  subject  “ Testing  bottles  for  containing  bottled-in-bond 
spirits,”  dated  Treasury  Department,  Office  of  the  Commissioner  of  Internal 
Revenue,  Washington,  D.  C.,  Nov  ember  9,  1906.  Many  of  the  State  laws  and 
the  food  commissioners  of  some  of  the  States  also  give  recognition  to  this 
peculiarity  of  glass  bottles. 

In  our  opinion  the  spirit  or  object  of  the  bill  is  commendable,  contemplating, 
as  it  does,  the  elimination  of  deceit  and  fraud,  and  we  do  not  want  to  appear 
in  the  light  of  opposing  progress  or  sterling  honesty,  but  feel  that  some  con- 
sideration should  be  given  to  the  small  flavoring  extract  bottles  that  we  under- 
stand are  sold  by  the  flavoring-extract  manufacturers  for  5 and  10  cents;  the 
price  of  such  bottles  must  be  low  to  allow  the  flavoring-extract  manufacturer  to 
sell  his  product  so  cheaply.  Owing  to  the  low  price  at  which  the  bottles  are  sold, 
they  must  be  made  rapidly,  and  these  smaller  bottles  can  not  be  inspected  indi- 
vidually and  weighed  and  measured,  as  the  cost  would  be  prohibitory.  The  glass 
blower  who  makes  this  ware  is  paid  by  the  piece,  and  must  produce  a large 
quantity  of  such  bottles  per  day  to  earn  fair  wages ; and  in  our  opinion  the  con- 
sumer is  also  vitally  interested  if  any  provision  of  the  bill  would  tend  to  in- 
crease the  cost  of  necessary  articles,  such  as  flavoring  extracts,  or  to  in  any  way 
restrict  the  use  of  glass  bottles  in  these  small  sizes. 

From  a sanitary  point  of  view,  the  advantage  of  the  glass  container  over 
that  of  any  other  material  is  generally  recognized,  and  surely  from  considera- 
tion of  public  health  the  use  of  glass  should  be  encouraged. 

Please  do  not  consider  this  a direct  protest  against  the  object  of  the  bill.  It 
is  simply  a plea  for  such  reasonable  tolerance  ns  is  necessary,  in  our  judgment, 
particularly  as  applied  to  the  smaller  glass  bottles. 

Inclosed  please  find  a pamphlet  expressing  the  views  of  a joint  committee 
representing  both  the  manufacturers  and  workmen  engaged  in  the  production 
of  glass  containers,  showing  that  our  opinion  is  not  that  of  an  individual  or  of 
an  individual  company  alone,  but  that  the  facts  above  referred  to  are  concurred 
in  by  practically  all  of  those  engaged  in  this  business. 

If  there  is  any  further  assistance  or  information  that  we  can  give,  please 
command  us. 

Yours,  very  truly,  Illinois  Glass  Co. 

Senator  Pomerene.  I will  ask  that  you  insert  Circular  681,  referred 
to,  in  the  record,  as  a part  of  your  remarks. 

Dr.  Baer.  Yes. 

The  circular  referred  to  is  as  follows : 

[Circular  No.  681.] 

Testing  Bottles  for  Containing  Bottled-in-Bond  Spirits. 


Treasury  Department, 

Office  of  Commissioner  of  Internal  Revenue, 

Washington,  November  9 . 1906. 


To  collectors  of  internal  revenue: 


Recent  reports  received  at  this  office  show  that  bottled-in-bond  spirits  are 
being  placed  on  the  market  in  bottles  stumped  and  sold  as  containing  1 quart, 


AMENDMENT  TO  PURE-FOOD  LAW. 


59 


which  in  some  instances  are  found  to  be  short  in  measure  as  much  as  2 ounces 
to  a bottle,  the  stamp  of  the  Government  thus  being  made  to  show  a quantity 
of  spirits  in  such  bottles  in  excess  of  the  actual  contents  of  the  bottles. 

In  view  of  this  fact,  every  distiller  who  is  engaged  in  bottling  spirits  in  bond 
will,  without  unnecessary  delay,  provide  himself  with  a standardized  glass 
graduate,  cylindrical  in  shape,  with  lip  so  fashioned  that  liquid  may  be  poured 
from  the  instrument  into  a bottle  without  waste,  and  suitable  for  the  purpose 
of  determining  the  capacity  of  the  various  bottles  used  by  him  for  the  purpose 
indicated,  and  in  order  to  avoid  delay  in  bottling,  should  see  that  the  bottles 
delivered  in  the  warehouse  are  of  the  capacity  required  by  this  regulation. 

Storekeepers  on  duty  at  bottling  warehouses  will,  whenever  a supply  of 
bottles  is  brought  into  the  warehouse,  test  a number  of  each  size  by  means  of 
the  instrument  mentioned  before  allowing  any  to  be  filled,  and  where  it  is 
found  that  they,  or  any  of  them,  are  of  less  capacity  than  that  required  by  this 
regulation,  decline  to  allow  any  of  them  to  be  used  until  the  entire  lot  shall 
have  been  removed  from  the  warehouse  and  all  bottles  not  of  the  required 
capacity  excluded  therefrom. 

As  this  office  is  informed  that  glass  manufacturers  will  not  contract  to  fur- 
nish bottles  of  exact  size,  it  is  held  that  where  quarts  do  not  vary  in  capacity 
more  than  1 ounce  from  the  standard  of  32  ounces,  and  other  sizes  in  like  pro- 
portion, that  no  notice  need  be  taken  of  such  variation. 

Distillers  are  advised  that  the  instrument  referred  to  may  be  procured  from 
any  dealer  in  scientific  glassware. 

Collectors  will  acknowledge  receipt  of  this  circular  and  see  that  the  instruc- 
tions herein  contained  are  observed. 

John  W.  Yerkes,  Commissioner. 

The  exemption  that  will  be  absolutely  necessary  for  the  extract 
manufacturers  to  honestly  conform  with  the  nets  and  weights  meas- 
ures bill  which  we  indorse,  is  the  exemption  of  the  5 and  10  cents 
seller  bottle.  The  5 and  10  cents  seller  is  now  about  a half  ounce 
bottle.  The  10-cent  seller  varies  from  a 6-dram  to  an  8-dram  bottle. 
According  to  the  rules  and  regulations  laid  dowTn  there  it  is  prac- 
tically impossible  to  arrange  to  give  the  exact  weight  on  the  bottle. 
Of  course  you  can  make  the  suggestion  of  putting  the  minimum 
weight  on,  but  that  would  invariabty  introduce  competition. 

I remember  an  incident  which  happened  in  our  factory  about  a 
year  and  a half  ago.  We  started  to  put  the  weights  and  measures  on 
our  packages.  We  were  getting  out  a 3-ounce  package.  We  bought 
the  No.  13  ball  neck  panel,  which  is  supposed  to  be  3 ounces.  I said, 
“ Bring  down  24  bottles  from  that  case.”  The  bottles  were  supposed  to 
be  3 ounces,  but  they  actually  measured  2f  ounces  to  3J  ounces.  The 
majority  of  them  were  from  2J  ounces  to  2J  ounces.  They  came  to 
me  regarding  the  labeling  of  the  cartons  on  the  bottle,  and  they  said, 
“What  shall  we  do?  The  bottles  are  2J-ounce  bottles.”  The  objec- 
tion was  raised  that  if  we  labeled  it  as  a 3-ounce  bottle  our  competi- 
tors would  use  that  as  an  argument  that  we  were  giving  the  dealer 
and  the  consumer  one-twelfth,  or  8 per  cent,  less  for  their  money. 
So  the  only  thing  we  can  do  is  to  get  the  exemption  on  these  small 
bottles  which  can  be  placed  broadly  under  the  “ 5 and  10  cent  seller.” 

The  Acting  Chairman.  As  I understand  you,  Doctor,  you  recom- 
mend the  adoption  of  the  amendment  that  was  suggested,  allowing 
an  exemption  on  all  packages  sold  at  11  cents  or  less? 

Mr.  Baer.  Eleven  cents  or  less ; yes,  sir. 

Senator  PomereNe.  Why  do  you  say  “11  cents”? 

The  Acting  Chairman.  Less  than  il  cents. 

Mr.  Baer.  I say  less  than  11  cents.  Ten  cents  or  less  would  cover 
it.  We  do  not  want  the  11  cents.  We  just  want  the  10  cents  included. 


60 


AMENDMENT  TO  PURE-FOOD  LAW. 


Senator  O'Gorman.  “ Ten  cents  or  less  ” ought  to  be  the  expres  • 
si  on. 

The  Acting  Chairman.  Have  you  anything  further  to  present  ? 

Mr.  Baer.  Of  course,  there  is  this  chance  of  the  extract  being  sold 
and  kept  on  the  shelf  for  a year  or  two.  As  often  happens,  the  retail 
grocer  shoves  the  old  bottle  back  and  puts  in  the  new.  Then  there 
would  be  a certain  amount  of  variation,  and  that  would  be  taken  care 
of  by  the  reasonable  variation  clause  you  have  in  the  bill. 

The  Acting  Chairman.  It  is  proposed  to  strike  out  the  reasonable 
variation  clause. 

Senator  Pomerene.  Allow  me  to  suggest  this  for  your  thought, 
as  well  as  the  other  gentlemen  here : You  have  simpty  given  the  diffi- 
culties here  as  you  see  them  in  your  particular  line.  I take  it  that 
in  other  lines  of  manufacture  they  may  have  slightly  different  diffi- 
culties to  contend  with.  I realize  that  there  ought  to  be  certain  toler- 
ances in  legislation  of  this  character,  but  do  you  not  think  that  ought 
to  be  left  to  the  department  to  formulate  some  rules  as  to  what  those 
tolerances  should  be,  rather  than  to  make  some  general  statute  on 
that  subject  ? 

Senator  O’Gorman.  That  is  provided  for  by  statute.  Let  me  read 
this.  It  reads: 

Provided,  however.  That  reasonable  variations  shall  be  permitted:  and  tol- 
erances shall  he  established  by  rules  and  regulations  made  in  accordance  with 
the  provisions  of  this  act. 

The  department  would  establish  rules  to  regulate  that. 

Senator  Pomerene.  It  says  they  “ shall  be.” 

Senator  O'Gorman.  That  would  be  mandatory ; they  must  estab- 
lish rules  to  govern  it. 

Mr.  Baer.  Unless  you  have  that  clause  in  the  law  itself  designat- 
ing that  the  department  shall  make  those  rules,  you  will  find  that 
rules  and  regulations  will  be  hard  to  obtain.  We  found  that  on 
other  different  matters  of  the  pure-food  law. 

Senator  Pomerene.  Do  you  mean  that  the  pure-food  department 
is  slow  to  make  these  regulations? 

Mr.  Baer.  They  do  not  realize  the  difficulties  in  full  ; they  are  not 
in  the  practical  end  of  the  business.  They  do  not  realize  the  honest 
and  sincere  difficulties  with  which  every  manufacturer  has  to  con- 
tend. 

Senator  Pomerene.  They  do  not  realize  you  have  just  that  line  of 
difficulties  to  contend  with? 

Mr.  Baer.  Yes.  But  if  they  would  realize  our  difficulties  and  do 
that,  it  would  be  all  right;  but  it  is  far  better  for  the  consumer  and 
the  manufacturer  to  have  a proper  provision  made  in  the  statute, 
because  eventually  they  always  fall  back  upon  the  statute. 

Senator  Pomerene.  My  thought  is  this,  that  the  rule  for  the  toler- 
ances should  be  prescribed  by  the  Government,  or  by  some  branch 
of  the  Government,  and  not  be  made  by  the  manufacturer.  Of 
course,  I have  not  any  doubt  that  he  would  be  consulted  in  the  mat- 
ter. They  would  like  his  advice  in  the  matter,  and  they  ought  to 
have  it. 

Mr.  Baer.  I believe  the  5 and  10  cent  package  would  protect 
nearly  every  one  of  the  manufacturers.  If  we  merely  protect  the 
ounce  and  2-ounce  package,  we  would  not  be  fair.  We  might  not  be 


AMENDMENT  TO  PURE-FOOD  LAW. 


61 


fair  to  the  candy  industry,  because  they  might  have  packages  which 
will  weigh  more  than  that,  and  the  public  would  be  deceived.  With 
this  provision  they  would  be  protected,  and  it  would  cover  nearly 
every  industry.  We  pack  1 and  2 ounce  packages.  We  pack  an 
oil  of  rose,  a flavoring  ingredient,  that  sells  at  10  cents  an  ounce  to- 
day. There  a little  variation  would  be  a factor  to  the  consumer.  A 
little  variation  on  the  5 and  10  cent  seller,  I presume,  would  not  be 
a factor  to  the  consumer,  while  a variation  on  a small  package  of 
1 or  2 ounces — an  oil  of  rose,  or  some  other  more  expensive  flavor- 
ing ingredient — would  be  a factor. 

The  Acting  Chairman.  If  no  one  else  desires  to  speak  for  your 
association,  we  will  hear  next  from  a representative  of  the  National 
Wholesale  Grocers’  Association. 

STATEMENT  OF  MR.  DANA  T.  ACKERLY,  COUNSEL  NATIONAL 
WHOLESALE  GROCERS’  ASSOCIATION,  NEW  YORK  CITY. 

Senator  O’Gorman.  Mr.  Ackerly,  were  you  not  heard  by  the  com- 
mittee before? 

Mr.  Ackerly.  Yes;  but  I desire  about  four  minutes  now  on  an- 
other point  that  has  arisen  since,  if  I may.  I will  limit  myself  to  a 
five-minute  period. 

Senator  O’Gorman.  I only  inquire,  thinking  that  you  might  have 
deemed  it  necessary  to  repeat  your  argument,  in  view  of  the  long 
delay  since  our  last  session.  But  we  have  the  testimony  of  all  the 
witnesses,  and  it  will  be  read  by  all  the  members  of  the  committee 
when  we  come  to  take  up  the  subject  of  considering  finally  what  shall 
be  done  with  this  bill. 

Mr.  Ackerly.  I shall  not  repeat  it.  I wish,  first,  if  I may,  to  have 
put  in  the  record  a letter  from  the  superintendent  of  weights  and 
measures  of  the  State  of  New  York,  in  favor  of  the  insertion  in  the 
bill  of  the  words  “ reasonable  variations.”  Dr.  Reichmann,  of  New 
York,  was  one  of  the  pioneers  in  this  compulsory  weight-branding 
legislation,  and  the  New  York  law  that  passed  last  year,  1912,  in- 
corporates this  very  provision  in  section  IT  of  chapter  81  of  the  New 
York  laws  of  1912. 

Senator  O’Gorman.  It  excepts  3-ounce  packages,  does  it  not? 

Mr.  Ackerly.  It  excepts  3-ounce  packages,  and  has  a measure 
exception,  according  to  fluid  ounces. 

Senator  O’Gorman.  Does  it  also  make  an  exception  for  small- 
priced  goods,  like  the  5 and  10  cent  articles? 

Mr.  Ackerly.  No;  I believe  that  was  regarded  as  being  covered 
by  the  4-ounce  and  3-fluid-ounce  exemption. 

Senator  O’Gorman.  Yes. 

Mr.  Ackerly.  In  Connecticut  the  exemption,  I believe,  was  10 
cents  or  less.  In  New  York  this  provision  was  coupled  also  with  the 
statement,  “ Reasonable  variations  shall  be  permitted,”  in  section  17 
of  the  New  York  law. 

Senator  O’Gorman.  As  I remember  your  testimony  before,  you 
were  not  favorable  to  the  exemption  of  the  5 and  10  cent  articles? 

Mr.  Ackerly.  It  seems  to  us  that  our  people  were  getting  an 
exemption  on  cereal  packages  selling  for  10  cents,  on  other  packages 
selling  for  5 cents  that  are  much  larger  than  the  flavoring-extract 


62 


AMENDMENT  TO  PUKE-FOOD  LAW. 


bottles,  and  the  question  arose  which  Senator  Pomerene  has  just- 
mentioned,  that  there  are  thousand  of  lines  of  goods  here,  and  each 
manufacturer  has  his  own  particular  class.  Therefore,  if  under 
the  wording  you  have  just  read  as  to  regulations  the  provision  was, 
“Reasonable  variations  shall  be  permitted,  and  tolerances  estab- 
lished by  rules  and  regulations,”  there  is  a Government  board  of 
experts  before  which  each  line  of  manufacturers  may  appear  if  they 
have  particular  difficulties,  whether  it  be  as  to  the  small  package,  or 
as  to  shrinkage  or  variations  in  filling  of  the  package,  to  state  his 
case  and  ask  a regulation  that  makes  the  law  livable  for  him. 

Upon  that  question  we  wrote  the  superintendent  of  weights  and 
measures  of  New  York,  asking  him  why  that  provision  was  put  in 
the  law.  I have  his  answer  here,  and  I wish  to  incorporate  it  in  the 
record,  if  I may. 

The  Acting  Chairman.  It  will  be  inserted. 

Mr.  Ackerly.  The  paragraph  to  which  I desire  to  call  particular 
attention  is  as  follows : 

It  is  clearly  impracticable  with  any  degree  of  fairness  to  establish  by  statute 
the  exact  amount  of  allowable  cariation,  for  two  reasons:  First,  such  varia- 
tions would  have  to  be  established  for  every  known  article, ^and  therefore  would 
present  a statute  of  the  size  of  the  dictionary;  second,  if  the  allowable 
variations  were  established  by  statute  it  would  act  as  a brake  on  any  incentive 
to  improve  the  accuracy  of  any  particular  art  or  method.  Therefore,  the  only 
way  after  years  of  discussion  that  was  found  in  any  way  equitable  and  fair, 
and  the  only  way  which  becomes  an  absolute  necessity,  is  to  provide  in  the 
body  of  the  statute  itself  that  reasonable  variations  must  be  allowed,  and  such 
reasonableness  to  be  determined  by  a board  or  commission  who  carefully  investi- 
gate the  various  factors  entering  into  the  process. 

The  letter  in  full  is  as  follows : 

State  of  New  York, 

Office  of  Superintendent  of  Weights  and  Measures, 

Room  427,  Capitol, 
Albany,  N.  Y.,  December  3,  1912. 

Messrs.  Breed,  Abbott  & Morgan, 

32  Liberty  Street,  New  Yorlc  City,  N.  Y. 

Gentlemen  : Yours  of  the  30th  ultimo  has  been  received  in  which  you  ask  me 
for  the  reasons  that  led  to  the  incorporation  in  chapter  81  of  the  laws  of  1912 
“ that  reasonable  variations  shall  be  permitted.”  In  reply,  I will  state  that 
when  I drew  up  the  bill,  which  afterwards  was  enacted  into  statute  and  be- 
came chapter  81  of  the  laws  of  1912,  in  order  to  protect  the  consumer  that  he 
might  know  how  much  he  was  receiving,  and  at  the  same  time  be  perfectly 
fair  with  the  manufacturer,  it  became  necessary  to  investigate  the  methods  of 
putting  up  various  commodities.  It  may  be  stated  as  axiomatic,  which  every 
sane  person  knows,  that  such  a thing  as  absolute  accuracy  is  impossible,  there- 
fore it  becomes  necessary  to  establish  certain  variations  which  must  be  deter- 
mined by  the  advance  of  the  art  of  the  process  of  making  or  putting  up  com- 
modities. It  is  clearly  impracticable  with  any  degree  of  fairness  to  establish 
by  statute  the  exact  amount  of  allowable  variation  for  two  reasons;  firstly,  such 
variations  would  have  to  be  established  for  every  known  article,  and  therefore 
would  present  a statute  of  the  size  of  the  dictionary ; secondly,  if  the  allowable 
variations  were  established  by  statute  it  would  act  as  a brake  on  any  incentive 
to  improve  the  accuracy  of  any  particular  art  or  method.  Therefore  the  only 
way,  after  years  of  discussion,  that  was  found  in  any  way  equitable  and  fair, 
and  the  only  way  which  becomes  an  absolute  necessity,  is  to  provide  in  the  body 
of  the  statute  itself  that  reasonable  variations  must  be  allowTed  and  such  reason- 
ableness to  be  determined  by  a board  or  commission  who  can  carefully  investi- 
gate the  various  factors  entering  into  the  process. 

I wish  to  call  to  your  mind  in  this  connection  two  very  fallacious  arguments 
that  have  been  advanced,  firstly,  that  the  exact  amount  should  be  stated.  That 
hardly  needs  an  answer,  because,  as  already  stated  above,  it  is  clearly  impossi- 
ble to  have  anything  that  is  absolutely  accurate,  and,  with  the  very  highest 


AMENDMENT  TO  PURE-FOOD  LAW. 


63 


degree  of  precision,  is  a laborious  scientific  process  which,  of  course,  would 
absolutely  be  impossible  in  any  commercial  transaction.  Secondly,  the  argu- 
ment has  been  advanced  that  the  amount  actually  in  the  package  should  be 
more  than  is  stated  thereon,  because  it  would  be  to  the  advantage  of  the  con- 
sumer. The  fallacy  of  such  an  argument  is  very  easily  shown  by  simply  illus- 
trating as  follows : A manufacturer  puts  up  a commodity,  A,  marks  it  on  the 
outside  “ Over  3 ozs.”  He  could  then,  under  the  protection  of  such  a pro- 
vision of  law,  put  up  any  size  package  from  a fraction  over  3 ounces  to  3 tons ; 
in  short,  he  would  make  a farce  of  the  law  which  was  primarily  designed  to 
protect  the  consumer,  and  secondarily  to  protect  the  honest  manufacturer 
from  the  competitor  who  designedly  deceives.  So  much  for  the  general  argu- 
ment, and  I confess  that  I personally  can  not  see  how  any  person  could  possibly 
object  to  allowing  reasonable  variations. 

To  give  you  a few  specific  illustrations  from  food  products: 

FLOUR. 

In  putting  up  flour,  it  is  first  necessary  to  take  into  consideration  the  varia- 
tion in  the  scales  themselves;  secondly,  to  show  the  variation  in  the  flour 
itself.  It  is  only  necessary  to  point  to  the  variations,  for  instance,  in  the 
moisture  content  of  wheat,  the  weight  of  the  flour  bearing  a direct  relation 
to  the  moisture  content.  The  moisture  content  of  wheat  of  samples  of  about 
25  cars  taken  in  Minneapolis  varied  in  1909  from  12.93  to  14.8  per  cent;  in 
1910  from  12.6  to  16.4  per  cent;  in  1911  from  12.65  to  15.85  per  cent.  These 
are  all  wheats  of  the  same  grade.  In  1910  the  moisture  content  from  another 
mill  showed  a variation  in  92  cars  tested  of  from  12  to  16.1  per  cent.  These 
are  only  a few  out  of  a number  of  illustrations,  and  illustrate  that  the  flour 
ground  therefrom  will  necessarily  vary  in  weight  as  delivered  to  the  point  of 
destination.  Secondly,  the  amount  of  flour  sifted  through  the  sacks,  when  flour 
is  put  up  in  cotton  sacks,  varies  not  only  with  the  amount  of  handling  but  as 
to  the  place  where  packed  and  when  packed  as  to  the  amount  of  moisture  con- 
tent. In  the  above  I have  not  taken  into  consideration  the  variation  in  the 
cotton  itself,  which,  as  a manufacturing  proposition,  must  be  averaged,  and 
each  individual  bag  can  not  be  marked. 

CRACKERS. 

Even  with  the  greatest  amount  of  care  in  mixing  the  dough,  rolling  out  and 
stamping  out  the  crackers,  there  is  a variation  in  the  baking,  depending  upon 
whether  the  cracker  in  the  oven  is  near  the  end  or  near  the  center  of  the 
shelf,  and  those  crackers  near  the  end  have  their  corners  slightly  thickened  and 
turned  up,  which  is  an  unavoidable  manufacturing  proposition.  These  crackers 
in  the  package  can  not  be  individually  weighed  and  the  exact  amount  stated 
on  each  package,  but  the  whole  must  be  averaged,  and  therefore  the  reasonable 
variation  must  be  allowed.  It  is  simply  reasonable  to  consider  that  in  one 
brand  of  crackers  in  one  factory  there  are  at  least  200,000  packages  put  up  in 
one  day,  which,  if  each  individual  package  of  crackers  had  to  be  weighed  and 
the  exact  amount  with  an  even  rough  degree  of  precision,  using  the  term  pre- 
cision in  a scientific  sense,  were  stated,  it  would  undoubtedly  reduce  the  pro- 
duction with  the  same  overhead  expense  to  not  over  5,000  packages. 

CEREALS. 

The  amount  put  into  a package  of  cereal  is  in  many  cases  determined  by  a 
relation  between  the  cubical  content  and  the  weight  of  such  cubical  content 
which  is  an  average  proposition,  the  weight  of  a cubic  foot  of  cereal  varying 
in  the  same  kind  of  cereal  with  the  unavoidable  physical  changes  in  the  cereal 
and  varying  with  the  cereal  as  it  comes  from  the  hopper  at  the  beginning  of 
the  operation  or  at  the  end  of  the  operation,  and  here,  as  in  the  case  of  crackers, 
it  is  an  impossibility  to  get  an  exact  amount  as  a commercial  proposition  without 
very  materially  increasing  the  cost  to  the  consumer. 

BUTTER. 

On  tests  made  on  various  kinds  of  print  butter  made  by  expert  butter  makers 
as  nearly  as  possible  alike  and  from  the  few  prints  weighed  they  showed  a 
variation  of  from  490.8  grams  to  463.5  grams,  or  a variation  of  27.3  grains, 


64 


AMENDMENT  TO  PURE-FOOD  LAW. 


Whicli  of  course  showed  the  same  variation  whether  expressed  in  grams,  ounces, 
or  pounds.  In  addition  to  this  there  is  the  variation  in  commercial  scales  them- 
selves, and  also  the  unavoidable  variation  in  the  moisture  content  and  the 
variations  due  to  changes  in  evaporation  due  to  different  methods  of  handling 
packing,  and  storing. 

FOOD  PRODUCTS  PUT  UP  IN  GLASS  BOTTLES. 

The  art  of  glass  blowing  may  be  classed  under  three  separate  heads,  hand- 
blown  bottles,  which  show  a very  great  variation  in  size,  even  when  blown  by 
expert  blowers;  second,  semiautomatic  bottles,  in  which  part  of  the  process  is 
by  hand  and  part  by  machinery  which  show  a very  much  smaller  variation 
than  the  first  class,  still  a variation  which  in  many  cases  will  run  up  as  high 
as  10  or  15  per  cent  if  two  individual  bottles  are  compared;  and  third,  totally 
automatic  bottles,  which  show  a smaller  variation,  but  which  also  in  extreme 
cases  show  a variation  of  as  high  as  8 per  cent.  Such  variations  in  bottles 
in  the  manufacture  of  the  bottles  has  been  recognized  for  years,  as  is  evidenced 
by  the  fact  that  there  is  a printed  wage  scale  and  working  rules  adopted  by 
the  Glass  Bottle  Blowers’  Association  of  the  United  States  and  Canada  and 
the  National  Glass  Vial  and  Bottle  Manufacturers’  Association,  where  the  va- 
riations and  tolerances  that  are  considered  as  reasonable  are  specifically  agreed 
to  between  the  blowers  and  the  manufacturers.  So  much  for  the  bottles  them- 
selves. It  may  be  contended  that  large-size  bottles  could  be  used  and  then  filled, 
which  is  commercially  bad  from  the  standpoint  of  the  appearance  of  the  filled 
bottle,  but,  leaving  that  aside,  we  have  to  then  consider  the  variations  in  the 
filling  devices  themselves.  No  filling  device  which  with  any  degree  of  rapidity 
can  fill  the  bottles  uniformly  the  same  has  yet  been  devised,  and  with  the 
same  device  there  will  be,  of  course,  considerable  variation  in  the  amount  of 
liquid  discharged  with  different  kinds  of  liquids.  In  the  case  of  the  mixture 
of  a solid  and  a liquid,  where  the  solid  appears  in  separate  particles,  as  it  does 
in  the  case  of  many  preserved  small  fruits,  it  is  impossible  to  get  the  exact 
same  number  or  the  same  amount  in  each  bottle  for  reasons  yet  beyond  the 
control  of  man. 

CANNED  GOODS. 

Canned  goods  vary  considerably  from  season  to  season,  such  variation  being 
often  as  much  as  7 per  cent  when  the  contents  are  sold  by  weight.  If  the  con- 
tents are  sold  by  fluid  measure  there  is  a considerable  variation,  due  to  the 
necessarily  rapid  filling  of  the  cans  on  certain  commodities  as,  for  instance, 
in  peas,  where  the  canning  must  be  done  in  a very  short  time  on  account  of 
the  crop  conditions. 

SMOKED  MEATS. 

The  variation  in  smoked  meats  depends  upon,  first,  the  weighing  devices  used : 
secondly,  upon  the  variations  in  some  kinds  of  meat ; thirdly,  upon  the  tem- 
perature and  humidity  and  other  climatic  conditions  which  the  meat  encoun- 
ters either  in  transportation,  handling,  or  in  storage;  and,  fourthly,  the  large 
element  of  shrinkage  due  to  time.  That  a variation  is  recognized  as  a com- 
mercial necessity  is  seen,  from  the  fact  that  certain  variations  are  allowed  in 
all  contracts  for  the  sale  of  meat  in  wholesale. 

COFFEE. 

Coffee  and  many  kinds  of  granular  substances  which  are  comparatively  free 
from  moisture  and  are  neither  deliquescent  nor  effervescent  can  be  handled 
with  a high  degree  of  rapidity  and  accuracy  by  automatic  weighing  devices, 
and  therefore  very  much  smaller  variations  are  encountered  in  such  sub- 
stances when  put  up  by  weight,  and  they  are  generally  put  up  by  weight  and 
the  weight  marked  on  the  can  irrespective  of  legal  requirement. 

SUMMARY. 

The  above  are  a few  illustrations  taken  at  random.  Broadly  it  may  be 
stated  that  not  to  allow  reasonable  variations,  if  it  is  required  to  mark  the 
quantity  on  the  outside  of  the  containers,  will  very  materially  increase  the  cost 
of  production  and  consequently  the  cost  to  the  consumer,  and  even  then  a varia- 


AMENDMENT  TO  PURE-FOOD  LAW. 


65 


tion  must  necessarily  be  allowed.  To  allow  no  variation  will  absolutely  stop 
tbe  manufacture  of  every  kind  of  goods  put  up  in  packages,  which  would  be 
exceedingly  harmful,  because  putting  up  food  commodities  in  packages  is  cer- 
tainly the  most  sanitary  way  of  handling  them. 

Yours,  very  truly,  F.  Eeichmann, 

Superintendent. 

Mr.  Ackerly.  We  have  no  wish  to  oppose  an  exemption  of  a 5 
and  10  cent  seller  or  a small  package,  if  that  is  necessary  for 
another  line  of  trade,  but  it  did  seem  to  us  that  under  a provision  for 
variations  and  rules  and  regulations,  with  a Government  board  of 
experts  before  which  the  different  lines  would  appear,  and  have  full 
time  given  on  these  minor  matters,  the  thing  would  be  practicable. 
Nine  States  have  now  required  compulsory  weight  and  measure 
branding.  Connecticut  has  given  an  exemption,  as  I recall,  10  cents 
or  less.  That  package  is  not  required  to  be  branded.  I believe,  hoAV- 
ever,  that  is  limited  to  confectionery.  New  York  makes  the  small- 
package  limit  upon  the  measure  basis,  2 fluid  ounces  or  less,  or  upon 
the  weight  basis,  so  many  avoirdupois  ounces  or  less  and  the  six 
numerical  count  or  less.  The  other  States  that  have  acted  are  North 
Dakota,  South  Dakota,  Wyoming,  Nevada,  and  Nebraska.  They 
have  not  allowed  the  exemption,  nor  have  some  of  them  allowed  for 
reasonable  variations,  although  three  of  those  mentioned  have. 

In  Florida,  where  none  have  been  allowed,  we  have  actually  a case, 
and  I have  the  notices  here  in  which  the  Florida  commissioner  of 
agriculture  has  cited  manufacturers  to  appear  in  four  cases  for 
branding  upon  the  label  of  canned  corn  a less  amount  than  was  in 
the  package,  his  statement  being  that  the  law  said  the  exact  weight 
or  measure  should  appear,  and  I should  like,  if  I may,  to  insert  those 
in  the  record. 

The  Acting  Chairman.  They  may  be  inserted. 

The  notices  are  as  follows : 

Department  of  Agriculture,  State  of  Florida, 

Commissioner’s  Office, 
Tallahassee,  August  22,  *1012. 

Dear  Sir  : This  is  to  notify  you  that  sample  No.  1128,  of  canned  corn  obtained 
from  your  stock  by  an  inspector  of  this  department  on  April  15,  1012,  has  been 
examined  by  the  State  chemist  and  found  to  be  misbranded,  as  the  net-weight 
statement  on  the  label  is  incorrect,  the  sale  of  which  is  a violation  of  the 
Florida  pure-food  law  of  June  5,  1911. 

You  are  therefore  directed  to  immediately  withdrawn  from  sale  any  and  all 
of  said  goods  now  in  your  possession,  under  the  penalties  prescribed  in  said 
pure-food  laws  of  the  goods  being  seized  and  sold  and  fine  and  imprisonment 
inflicted  upon  you. 

Please  acknowledge  receipt  hereof  and  advise  this  department  whether  or  not 
you  have  complied  with  the  above  instructions. 

Very  truly,  yours,  W.  A.  McRae, 

Commissioner  of  Agriculture. 


Department  of  Agriculture,  State  of  Florida, 

Commissioner’s  Office, 
Tallahassee,  August  22,  1912. 

Dear  Sir:  This  is  to  notify  you  that  sample  No.  1120,  of  canned  corn,  ob- 
tained from  your  stock  by  an  inspector  of  this  department  on  April  15,  1012, 
has  been  examined  by  the  State  chemist  and  found  to  be  misbranded  as  the 
net  weight  statement  on  the  label  is  incorrect  the  sale  of  which  is  a viola- 
tion of  the  Florida  pure-food  law  of  June  5,  1911. 

You  are  therefore  directed  to  immediately  withdraw  from  sale  any  and  all 
of  said  goods  now  in  your  possession,  under  the  penalties  prescribed  in  said 


66 


AMENDMENT  TO  PURE-EOOD  LAW. 


pure-food  laws  of  the  goods  being  seized  and  sold  and  fine  and  imprisonment 
inflicted  upon  you. 

Please  acknowledge  receipt  thereof  and  advise  this  department  whether  or 
not  you  have  complied  with  the  above  instructions. 

Very  truly,  yours,  W.  A.  McRae, 

Commissioner  of  Agriculture. 


[Analysis  of  official  sample  of  foods  and  drugs,  under  sec.  12,  cb.  6122,  June  5,  1911, 
samples  taken  by  inspector.] 


Agricultural  Department,  State  of  Florida, 

Division  of  Chemistry,  Food  and  Drug  Section, 

Tallahassee,  August  21,  1912. 

Hon.  W.  A.  McRae, 

Commissioner  of  Agriculture,  Tallahassee,  Fla. 

Sir  : I submit  the  following  analysis  of  official  food  and  drug  sample  No. 
1128,  inspection  No.  628 : 

Sold  as:  Canned  corn. 

Labeled : Delic-atesse  Brand  Sugar  Corn : 

Packed  by : Camden  Packing  Co.,  at  Camden,  Oneida  Co.,  New  York. 

Net  weight:  19  ounces  (sticker). 

Guarantor,  as  stated  by  dealer : Camden  Packing  Co.,  Camden,  Onieda  Co., 
New  York. 

Taken:  April  9,  1912,  at  retail  store. 

From : IT.  Markovitz,  dealer,  of  Key  West,  Fla. 

Salesman  or  witness : H.  Markovitz,  of  Key  West,  Fla. 

Received  on:  April  15,  1912,  from  A.  P.  Jordan,  Inspector. 

Chemist:  A.  M.  Henry. 

Analysis:  Total  solids  (per  cent),  22.35;  sulfites,  none;  artificial  sweetener, 
none;  weight,  1 pound  5 ounces. 

Remarks : Illegal.  Misbranded.  Incorrect  statement  of  net  weight  or 
measure.  See  regulation  29,  paragraph  c. 

Respectfully  submitted. 

R.  E.  Rose,  State  Chemist. 

Reported  August  21,  1912. 


[Analysis  of  official  samples  of  foods  and  drugs,  under  section  12,  chapter  6122,  June  5, 
1911,  samples  taken  by  inspector.] 


Agricultural  Department,  State  of  Florida, 

Division  of  Chemistry,  Food  and  Drug  Section, 

Tallahassee,  August  21,  1912. 


Hon.  W.  A.  McRae, 

Commissioner  of  Agriculture,  Tallahassee,  Fla. 

Sir:  I submit  the  following  analysis  of  official  food  and  drug  sample  No. 
1129,  inspection  No.  683: 

Sold  as:  Canned  corn. 

Labeled : Byron  Brand  Choice  Corn.  Average  net  weight  of  contents  at  least 
19  ounces. 

Guarantor,  as  stated  by  dealer : Byron  Packing  Co.,  New  York. 

Taken : April  9,  1912,  at  retail  store. 

From : W.  E.  Roberts,  dealer,  of  Key  West,  Fla. 

Salesman  or  witness:  A.  P.  Jordan,  of  Key  West,  Fla. 

Received  on  April  15,  1912,  from  A.  P.  Jordan,  inspector. 


Chemist:  A.  M.  Henry. 

Analysis:  Total  solids ‘(per  cent),  22.07;  sulfites,  none;  artificial  sweetener, 
none;  weight,  1 pound  5 ounces. 

Remarks:  Illegal.  Misbranded.  Incorrect  statement  of  net  weight  or  meas- 
ure. See  regulations  29,  paragraph  c. 

Respectfully  submitted. 

R.  E.  Rose,  State  Chemist. 


Reported  August  21,  1912. 


That,  gentlemen,  seemed  very  laughable  to  me  at  first,  but  in 
speaking  with  some  experts  about  it,  one  of  them  Dr.  Wiley,  I 
was  told  that  there  were  certain  kinds  of  products  where  it  was  an 


AMENDMENT  TO  PURE-FOOD  LAW. 


67 


advantage  to  have  the  weights  stated  lower.  There  are  some  flake 
foods,  and  particularly  there  are  some  drugs,  where,  if  you  were  to 
brand  less  than  was  actually  there,  it  might  conceivably  be  a fraud 
in  that  way.  And  then  the  question  arose  whether  the  gentlemen 
here,  all  of  us  who  have  spoken  for  reasonable  variations,  were  not 
asking  for  an  undervariation. 

It  does  not  seem  to  me  that  the  three  Secretaries  who  were  to  make 
these  regulations,  or  a court  before  whom  the*,  question  should  come, 
would  consider  a uniform  variation — a uniform  fraud — reasonable, 
and  therefore  the  statement  “ reasonable  A^ariations  shall  be  permit- 
ted ” is  not  a door  to  fraud. 

Then  there  was  considered  in  the  House,  and  I understand  there 
has  been  urged  here,  an  amendment  that  the  variation  shall  be  as 
often  above  as  below  the  amount  branded.  That,  you  will  readily 
see,  places  upon  the  Government  in  proving  its  case— — 

The  Acting  Chairman.  How  could  you  make  that  apply  to  a par- 
ticular package? 

Mr.  Ackerly.  It  could  not  be  done.  And  it  also  places  upon  the 
Government  in  proving  a case  the  responsibility  of  showing  before 
they  make  out  any  case  that  from  a certain  number  made  they  got 
more  belowr  than  above.  Whereas  as  it  stands  now  the  burden  of 
proof  is  on  the  defense,  who  naturally  have  the  best  evidence  on  that, 
to  establish  that  the  variation  is  reasonable. 

It  is  held  in  New  York  State  that  “ a so-called  4 above  and  below  > 
provision  would  be  improper,  for  the  reason  that  it  opens  the  door  to 
evasions  of  the  law,  and  would  allow  the  shipper  to  counterbalance 
an  extremely  light-weight  package  with  an  overweight  package.” 

It  seems  to  me  that  the  bill  as  it  stands,  so  far  as  that  amendment 
is  concerned,  would  meet  the  situation.  But  as  to  the  exemption  of 
the  small  package,  if  that  is  necessary  in  the  bill,  our  people  would 
not  desire  to  oppose  it,  but  simply  to  say  that  we  pack  small  pack- 
ages, and  have  the  same  difficulty  that  is  mentioned-  and  that  we  had 
expected  that  under  the  regulations  a wider  percentage  of  variation 
would  be  allowed  by  the  enforcing  officers  for  a small  package,  if  we 
could  show  a good  case,  than  for  a large  one  where  the  percentage 
could  be  run  more  evenly. 

Senator  O’Gorman.  T might  say  in  this  connection,  regarding  my- 
self, that  at  some  prior  hearings  I manifested  some  want  of  approval 
regarding  this  suggestion  that  a provision  should  be  made  for  vari- 
ations, as  I thought  it  would  open  a door  to  abuses.  But  since  our 
last  hearing — which  was  many  months  since — I visited  a glass  fac- 
tory in  the  West,  and  the  statement  made  here  a few  moments  ago 
by  a gentleman  confirms  what  I discovered  from  actual  observation, 
the  practical  impossibility  of  having  precise  uniformity  respecting 
each  glass  container.  In  consequence,  I have  moderated  my  views 
in  that  respect.  I am  now  inclined,  personally,  to  favor  some  pro- 
vision in  the  statutes  with  regard  to  these  variations. 

STATEMENT  OF  MR.  JOHN  A.  GREEN,  NATIONAL  ASSOCIATION  OF 
RETAIL  GROCERS,  CLEVELAND,  OHIO. 

Mr.  Green.  Mr.  Chairman  and  Senators,  we  are  in  favor  of  what 
is  known  as  the  Gould  bill,  the  bill  that  Ave  have  before  us,  and  we 
feel  that  the  consumers  who  are  our  closest  friends  are  entitled  to 
76667 — pt  4—13 2 


68 


AMENDMENT  TO  PURE-FOOD  LAW. 


everything  they  buy.  That  is,  we  believe  that  the  bill  provides  ior 
any  tolerances,  as  it  stands  now,  that  might  occur  here.  I know 
that  there  are  some  variations  in  glass  bottles.  I have  been  in  the 
glass  factories  in  Pittsburgh  and  other  glass  factories,  and  if  the 
fluid  ounces  are  to  be  taken  into  consideration  that  might  have  some 
standing,  but  anything  of  a 10  or  a 5 cent  character,  of  course,  would 
open  up  a very  broad  field.  For  instance,  take  cereals  of  all  kinds, 
crackers  in  boxes,  and  canned  goods,  and  a great  many  other  things, 
they  would  come  under  the  10  or  5 cent  package.  Of  course.  I take 
it  for  granted  that  you  would  look  into  that. 

Senator  O’Gorman.  Do  you  think  there  has  been  any  considerable 
fraud  practiced  on  the  purchasers  of  5 and  10  cent  articles  in  the 
past? 

Mr.  Green.  I would  put  it  this  way,  Senator,  that  there  was  a time 
when  crackers  held  more  in  the  box  than  they  do  now.  When  they 
first  came  out  there  was  a half  a pound  in  the  box,  say,  a nickel 
package.  To-day  there  is  some  5J  to  6 ounces  in  the  box.  I can  not 
say  but  what  the  consumer  wants  the  package.  That  is  true. 

The  Acting  Chairman.  The  crackers  are  a great  deal  better  than 
they  used  to  be. 

Mr.  Green.  That  is  true.  I have  opened  a box  of  bulk  crackers, 
and  I have  put  up  a pyramid  of  packages. 

Senator  O’Gorman.  You  see  the  proposed  law  here,  and  the  law 
along  similar  lines  in  the  several  States,  is  designed  to  protect  those 
consumers  from  imposition. 

Mr.  Green.  That  is  what  we  want. 

Senator  O’Gorman.  The  people  who  are  buying  something  in  the 
belief  and  upon  the  reliance  that  they  are  securing  a particular  quan- 
tity or  a particular  weight.  A person  who  buys  a barrel  or  a half 
barrel  or  flour,  or  anything  else,  a bag  of  flour,  or  who  buys  any  other 
commodity  where  the  consumer  is  influenced  in  the  price  he  pays  by 
his  belief  that  he  is  getting  a precise  weight. 

Mr.  Green.  True. 

Senator  O’Gorman.  If  he  goes  into  a store  and  buys  a little  pack- 
age of  candy,  for  instance — Mr.  ITeide’s  presence  suggests  that  to 
me — he  is  not  thinking  about  the  weight.  He  is  getting  a little 
article  and  knows  it  is  worth  the  3 cents,  5 cents,  or  10  cents  he  is 
paying  for  it.  So  a number  of  these  articles  are  sold  in  the  small 
stores,  or  the  5 and  10  cent  stores.  So,  with  your  cracker  proposition ; 
a man  who  is  buying  a package  of  crackers,  it  probably  does  not 
occur  to  him  half  a dozen  times  whether  he  is  getting  full  weight. 
He  sees  it  before  him  and  he  knows  just  exactly  what  he  is  getting. 

Mr.  Green.  We  are  in  favor  of  putting  in  the  amount.  We  want 
the  customer  to  know  that  he  is  getting  5J  ounces,  or  8 ounces,  or 
whatever  it  may  be.  It  is  to  our  advantage.  We  have  everything  to 
gain  and  nothing  to  lose. 

Senator  O’Gorman.  What  is  your  business? 

Mr.  Green.  I am  secretary  of  the  Association  of  Retail  Grocers. 

Senator  O’Gorman.  Do  you  recommend  that  every  article,  no  mat- 
ter how  small  a content  of  foodstuff,  should  have  the  precise  weight 
or  quantity  branded  ? 

Mr.  Green.  So  far  as  the  reasonable  variation  provisions  are  made 
for  taking  care  of  anything  of  that  kind,  I think  that  we  should  do  it. 


AMENDMENT  TO  PURE-FOOD  LAW. 


69 


The  Acting  Chairman.  Allow  me  to  ask  you,  do  you  not  think  it 
would  be  rather  a hardship,  for  instance,  to  compel  the  man  who 
puts  up  a little  package  of  peanuts  in  a paper  bag  and  sells  them  at 
a baseball  game  or  the  circus  to  put  the  exact  weight  on  each  of 
those  packages  ? 

Mr.  Green.  I presume  it  would. 

The  Acting  Chairman.  And  it  seems  to  me  that  that  would  not 
be  covered  by  the  variation  provision.  The  probabilities  of  fraud 
in  packages  that  are  sold  for  10  cents  or  less  are  so  small,  and  the 
additional  expense  involved  in  branding  those  packages  is  so  great, 
it  would  appear  to  me  that  the  man  who  puts  them  up  ought  to  be 
allowed  just  to  sell  them  and  let  the  people  take  them  for  what  they 
see  they  are,  and  not  compel  them  to  be  guaranteed. 

Mr.  Green.  There  are  a great  many  articles,  such  as  represented 
here  [indicating],  in  the  way  of  extracts  and  spices.  I do  not  know 
any  reason  why  those  boxes  could  not  be  made  to  contain  a quarter 
of  a pound,  2 ounces,  or  1 ounce  of  spice.  I do  not  know;  I do  not 
put  them  up.  We  do  not  wish  to  bring  about  a hardship  on  any 
manufacturer.  That  is  not  the  idea.  We  are  protecting  a man  who 
can  pay  25  cents  for  a box  of  candy,  and  then  undertaking  to  let 
the  fellow  that  buys  5 cents’  worth  take  what  he  can  get. 

Senator  O’Gorman.  You  know  you  never  had  a good  system  that 
did  not  have  some  exceptions  to  it. 

Mr.  Green.  That  is  true. 

Senator  O’Gorman.  And  if  you  do  not  make  the  10-cent  exception, 
would  you  insist  that  the  purchaser  of  a 2-cent  article  ought  to  have 
the  quantity  and  weight  branded  on  it? 

Mr.  Green.  I think  that  when  it  gets  down  to  the  small  box  of 
candy,  a penny’s  worth  or  two  pennies’  worth,  or  something  like 
that,  that  does  not  enter  into  it.  I do  not  think  that  enters  into 
what  we  would  call  the  living  part  of  the  commodities.  I should 
not  think  of  such  a thing. 

Senator  O’Gorman.  What  does  this  box  of  ginger  sell  for? 

Mr.  McCormick.  Five  cents. 

The  Acting  Chairman.  There  is  very  little  probability  of  a man 
getting  cheated  who  gets  that  box  full,  it  seems  to  me. 

Senator  O’Gorman.  The  consumer  who  is  to  be  protected  is  the 
one  who  goes  into  a store  and  is  deceived  either  by  express  declara- 
tions of  a false  character,  or  in  some  other  way,  or  is  deceived  as 
to  what  he  is  getting  both  as  to  quantity  and  weight.  The  law  is 
designed  to  try  to  protect  him  if  it  can. 

Mr.  Green.  That  is  what  we  are  after.  Then  there  is  another 
thing:  There  are  so  many  States  that  are  passing  State  laws,  and 
it  is  going  to  make  it  hard  for  some  of  our  people  to  know  just  what 
to  buy.  There  is  a law  for  one  State  and  a law  for  another.  Our 
idea  is  that  we  should  have  a Federal  law,  and  then  have  the  States 
conform  to  the  Federal  law.  T have  tried  to  hold  off  State  legisla- 
tion. I wish  to  admit  that  until  such  time  as  we  can  get  a Federal 
law  I have  done  everything  I could  to  hold  off  State  legislation — 
until  we  could  have  one  law  that  we  could  all  comply  with. 

Senator  O’Gorman.  You  will  probably  have  that  soon. 

The  Acting  Chairman.  I think  that  we  all  understand  your  posi- 
tion, Mr.  Green. 


70 


AMENDMENT  TO  PUBE-F00D  LAW. 


Mr.  Green.  I thank  you,  gentlemen. 

The  Acting  Chairman.  The  representatives  of  the  National  Con- 
fectioners’ Association  are  present,  and  I understand  that  Mr.  Fobes 
and  Mr.  Heide  have  something  to  add  to  what  they  said  before. 

STATEMENT  OF  MR.  EDWIN  F.  FOBES,  REPRESENTING  THE 
NATIONAL  CONFECTIONERS’  ASSOCIATION. 

The  Acting  Chairman.  You  were  heard  at  considerable  length 
before  ? 

Mr.  Fobes.  Yes,  sir. 

The  Acting  Chairman.  And  if  you  have  anything  additional  you 
would  like  to  give  to  the  committee  we  shall  be  glad  to  hear  it. 

Mr.  Fobes.  I wish  to  say  that  I came  to  this  hearing  anticipating 
that  we  would  appear  before  practically  a new  committee. 

Senator  O’Gorman.  The  new  members  who  are  on  the  committee 
now  will  read  the  testimony  that  all  of  you  gentlemen  gave  on  former 
occasions. 

Mr.  Fobes.  I have  very  little  to  add.  We  still  believe  that  our 
purpose  would  be  best  accomplished  if  we  could  have  a further 
amendment  to  the  proposed  law,  something  like  this : 

Provided,  further,  Tliat  the  provisions  of  this  act  shall  not  apply  to  articles 
in  package  form  when  the  retail  price  of  such  packages  is  10  cents  or  less. 

The  Acting  Chairman.  That  proposition  was  argued  at  consider- 
able length  before  the  committee  before. 

Mr.  Fobes.  Yes;  at  some  length. 

The  Acting  Chairman.  I think  the  committee  has  heard  enough 
on  that  point. 

Senator  O’Gorman.  Yes ; we  will  take  that  up  in  executive  session. 

Mr.  Fobes.  If  any  of  the  members  of  the  committee  who  were 
not  present  before  would  desire  to  take  up  with  me  any  of  the  sam- 
ples, to  illustrate  the  points,  I have  samples  here  that  will  show  very 
graphically  our  difficulties. 

Senator  O’Gorman.  If  you  have  some  of  those  small  packages 
here  you  might  exhibit  them. 

At  this  point  the  witness  exhibited  samples  of  confectionery  to 
the  committee. 

Mr.  Fobes.  Here  [indicating]  are  penny  packages — three  kind 
of  packages,  retailing  for  a penny.  This  [indicating]  is  a 5-cent 
stick  of  candy,  about  9 inches  long,  and  it  seems  to  us  useless  to  mark 
the  article  as  one  piece,  and  it  is  impracticable,  because  it  is  im- 
possible to  make  each  stick  of  the  same  weight,  to  state  a weight  upon 
them. 

The  same  would  apply  to  this  [indicating],  which  is  a chocolate- 
cream  cake,  about  3^  by  2 inches  in  diameter  and  a half  inch  in 
thickness,  which  retails  for  5 cents. 

Here  is  a package  of  La  Nougat,  La  Nougat  candy  is  cut  from  a 
solid  mass,  and  it  is  impossible  to  cut  it  uniformly,  and  we  have 
the  alternative  simply  of  marking  one  piece. 

Senator  O’Gorman.  What  does  that  sell  for? 

Mr.  Fobes.  Five  cents. 

Here  [indicating]  is  a package  of  chocolate  nougatines,  2J  inches 
by  1 inch,  sold  for  10  cents.  A package  of  this  sort  varies  from 


AMENDMENT  TO  PURE-FOOD  LAW.  71 

time  to  time  with  the  cost  of  material.  It  varies  in  weight  with  the 
cost  of  materials. 

Senator  O’Gorman.  Does  it  contain  one  piece  or  several? 

Mr.  Fobes.  It  contains  probably  10  or  12  pieces.  If  materials 
are  high  in  price  the  weight  is  naturally  shifted  somewhat.  If 
we  are  to  sell  a package  of  this  kind  we  have  to  procure  the  packages 
in  enormous  quantities  in  order  to  bring  them  at  a low  price,  and 
it  is  therefore  impracticable  to  state  any  weight  on  the  package,  be- 
cause the  weight  of  the  package  varies  from  time  to  time. 

The  Acting  Chairman.  Mr.  Fobes,  as  I understand  it,  your  asso- 
ciation would  recommend  the  10-cent  package  exception  ? 

Mr.  F 'obes.  The  exemption  on  packages  which  sell  for  10  cents 
or  less  would  meet  the  case  of  the  National  Confectioners’  Associa- 
tion very  well,  although  on  some  of  the  larger  packages  it  would 
be  very  difficult  for  us  to  comply.  And  the  provision  that  there  shall 
be  a “ reasonable  variation  ” is  a very  essential  one  to  us,  because  we 
have  the  question  of  shrinkages  and  the  question  of  producing  goods 
under  different  weather  conditions,  and  slightly  different  materials, 
which  affect  the  product. 

Senator  Pomerene.  This  10-cent  limitation,  then,  would  exclude 
all  the  cereals,  would  it  not? 

Mr.  F obes.  I presume  that  it  would.  It  might  affect  the  cereals — 
some  of  them. 

Senator  Pomerene.  Is  not  that  one  of  the  subjects  about  which 
there  has  been  a good  deal  of  complaint. 

Mr.  Fobes.  I understand  that  it  is. 

Senator  Pomerene.  Could  you  not  make  some  other  suggestions 
with  reference  to  that  which  at  the  same  time  would  be  fair  to  the 
manufacturer  and  the  consumer — on  the  10-cent  limitation? 

Mr.  Fobes.  I think  it  would  be  difficult  to  make  a suggestion  with- 
out making  one  which  would  be  primarily  for  the  benefit  of  the  con- 
fectionery trade — the  confectioners — and  I think  that  the  legislators 
as  a rule  are  very  loath  to  make  a regulation  which  would  apply  to 
any  one  industry,  although  it  would  be  very  satisfactory  to  us  if  that 
could  be  brought  about. 

Senator  O’Gorman.  Are  not  most  of  your  small  packages  of  candy 
sold  for  5 cents  or  less  ? 

Mr.  Fobes.  Yes;  everything  that  I have  here  is  sold  from  10  cents 
down  to  1 cent. 

Senator  O’Gorman.  What  I have  in  mind  now  is,  suppose  this 
exception  were  confined  to  the  5-cent  articles  only,  how  would  that 
affect  your  business?  In  other  words,  suppose  you  were  required  to 
brand  every  article  over  5 cents? 

Mr.  Fobes.  It  would  be  a difficult  situation  to  meet  as  regards 
many  pieces  of  goods  which  are  sold  for  10  cents,  for  the  expense  of 
weighing  and  branding  the  packages,  which  might  vary  in  weight, 
would  add  to  the  cost  of  the  goods. 

Senator  O’Gorman.  I can  see  how  it  would  discourage  you  from 
selling  10-cent  articles,  but  it  would  probably  increase  your  output 
of  5-cent  articles,  would  it  not? 

Mr.  Fobes.  Yes;  it  might  have  that  effect  in  some  measure,  but 
a purchaser  usually  gets  a better  value  in  one  purchase  for  10  cents 
than  in  two  5-cent  articles;  not  uniformly,  though. 


72 


AMENDMENT  TO  PURE-FOOD  LAW. 


Senator  O’Gorman.  I suppose  the  expense  of  the  extra  container 
would  come  into  it? 

Mr.  Fobes.  Yes;  and  the  labor  of  packing  the  individual  package. 
For  instance,  this  package  of  wafers  [indicating],  which  is  about 
5J  inches  long  and  packed  in  a transparent  paper:  it  is  evident  just 
what  the  purchaser  is  buying.  We  brand  this  a quarter  pound,  but 
they  frequently  weigh  considerably  more  than  that. 

Senator  O’Gorman.  And  as  to  that  package,  if  the  purchaser  were 
disappointed,  he  probably  would  not  buy  it  again?  That  would  be 
his  protection  with  respect  to  those  small,  cheap  articles? 

Mr.  Fobes.  Yes.  Our  contention  in  regard  to  a large  number  of 
our  pieces  is  this : That  the  goods  are  seen  or  the  goods  are  so  familiar 
to  the  consumer,  with  the  name  of  the  packer,  that  the  manufacturer 
can  not  afford  at  any  time  to  do  other  than  to  give  the  consumer  a 
good,  generous  value  for  his  money.  Competition  takes  care  of  that 
matter.  So  I think  there  is  very  little  fraud. 

Senator  Pomerene.  Just  this  one  question,  if  you  will  pardon  me. 
You  speak  of  this  limitation  of  10  cents.  It  does  seem  to  me  that 
would  not  be  very  effective  so  far  as  any  frauds  are  concerned  rela- 
tive to  cereal  packages.  I recognize  the  fact  that  there  ought  to  be 
some  reasonable  variation,  that  a man  ought  not  to  be  prosecuted 
every  time  there  is  a slight  variation  in  the  weight  of  that  package, 
but  is  not  that  a reason  why  the  department  should  formulate  some 
particular  rule  with  reference  to  that  particular  product,  and  not 
have  an  arbitrary  limitation  as  to  the  price  of  it?  I can  understand 
how  the  price  limitation  might  apply  to  some  of  these  little  matters 
that  you  have  called  to  the  attention  of  the  committee,  but  I should 
cerainly  doubt  the  wisdom  of  it  so  far  as  it  applied  to  cereals. 

Mr.  Fobes.  I think  there  is  much  force  in  what  you  say,  sir,  but 
we  confectioners  within  our  experience,  with  the  rules  made  by  the 
department,  and  the  difficulty  of  getting  decisions,  and  even  of  the 
almost  impossibility  of  ascertaining  what  we  may  be  permitted  to 
do,  it  has  made  us  very  loath  to  have  the  department  do  that. 

Senator  O’Gorman.  I should  like  to  ask  Mr.  Green  one  or  two 
more  questions,  if  you  have  finished,  Mr.  Fobes. 

About  how  many  cereal  foods  are  on  the  market  ? 

Mr.  Green.  It  is  a very  hard  question  to  answer.  It  would  be 
easy  to  say  that  there  are  75  different  brands. 

Senator  O’Gorman.  And  how  are  they  sold,  generally? 

Mr.  Green.  Either  5 or  10  cents — usually  10  cents. 

Senator  O’Gorman.  Is  10  cents  the  maximum  price? 

Mr.  Green.  There  may  be  a few  at  15  cents,  but  10  cents  is  the 
average  price.  There  are  very  few  at  15  cents  or  over  15  cents. 

Senator  O’Gorman.  Do  they  differ  very  much  in  the  quantity 
that  is  furnished  in  each  package? 

Mr.  Green.  I think  that  is  equally  divided,  Senator.  Here  is  jus* 
what  it  is,  practically.  I have  seen  a 2-pound  package  of  rolled  oats 
go  down  to  a pound  and  6 ounces — the  same  rolled  oats  which 
weighed  at  one  time  2 pounds. 

The  Acting  Chairman.  Do  you  mean  that  was  sold  by  weight  ? 

Mr.  Green.  By  package. 

Senator  O’Gorman.  Do  you  mean  that  was  due  to  evaporation? 

Mr.  Green.  Oh,  no;  duejto  putting  less  in  and  making  the  pack- 
ages smaller. 


AMENDMENT  TO  PUKE-FOOD  LAW. 


73 


Senator  Jackson.  The  same  size  package,  apparently  ? 

Mr.  Green.  It  looked  about  the  same. 

The  Acting  Chairman.  Might  not  that  be  due  to  the  increased 
cost  of  producing  it  ? 

Mr.  Green.  That  may  be. 

Senator  O’Gorman.  Or  a desire  for  enlarging  the  profits  ? 

Mr.  Green.  You  can  not  tell. 

The  Acting  Chairman.  Oh,  yes ; but  there  has  been  an  increase  in 
late  years  in  the  cost  of  producing  everything,  and  I suppose  a manu- 
facturer who  puts  an  article  on  the  market  which  sells  for  10  cents  if 
he  finds  he  can  make  less  for  10  cents  he  will  probably  sell  that 
amount. 

Senator  O’Gorman.  What  proportion  of  the  cereal  foods  are  sold 
for  5 cents  a package  ? 

Mr.  Green.  It  is  very  small ; hardly  to  be  counted ; not  one-fiftieth 
part  is  sold  for  5 cents. 

Senator  O’Gorman.  Is  the  consumer  imposed  upon  from  time  to 
time  with  respect  to  some  of  these  cereal  packages  ? 

Mr.  Green.  I can  not  say  that,  Senator.  I should  not  put  it  that 
way  quite.  I rather  think  that  the  consumer  thinks  that  he  is  get- 
ting a 2-pound  package — that  is  what  it  used  to  be — and  they  have 
never  asked  the  question,  how  much  that  holds,  that  I know.  If  you 
will  pardon  me  just  a minute,  to  digress- 

Senator  O’Gorman.  Yes. 

Mr.  Green.  I will  say  that  packages  are  here  to  stay.  The  con- 
sumers demand  it.  I will  say  also,  from  my  personal  experience  I 
do  not  care  how  careful  you  are  with  a barrel  of  rolled  oats,  I do  not 
care  what  precautions  you  take,  there  will  eventually  come  around  a 
little  worm  web.  It  will  be  there  no  matter  how  careful  you  are. 
And  from  the  fact  that  the  package  goods  are  kept  from  all  contam- 
ination and  made  sanitary  the  public  wants  them. 

Senator  O’Gorman.  You  say  you  would  prefer,  if  your  view  pre- 
vailed as  to  this  legislation,  to  have  every  package  marked  indi- 
cating its  weight  or  contents? 

Mr.  Green.  I did  not  say  that  these  little  penny  or  2-eent  packages 

should. 

Senator  O’Gorman.  Well,  with  the  exception  of  the  penny  or 
2-cent  packages  ? 

Mr.  Green.  Yes ; something  of  that  kind. 

Senator  O’Gorman.  Why  did  you  advise  that  such  a law  be  made? 

Mr.  Green.  I think  that  the  public  has  come  to  a place  where 
they  want  to  know  what  they  are  buying.  There  has  been  a great 
deal  of  publicity  and  faultfinding  in  regard  to  what  they  are  get- 
ting, that  they  have  not  been  getting  the  worth  that  the}T  pay  for, 
and  so  on.  If  packages  were  printed  with  the  rate  on,  then  the 
consumer  knows  exactly  the  amount  she  is  getting. 

Senator  O’Gorman.  I)o  you  think,  if  we  have  a law  such  as  you 
propose,  it  would  enable  the  consumer  to  know  that  he  is  perhaps 
getting  less  than  he  thinks  he  is  now  getting  in  these  small  5 and 
10  cent  packages,  and  it  would  have  the  effect  of  their  purchasing 
iarger  quantities  or  larger  packages? 

Mr.  Green.  I think  they  would  buy  just  the  same  as  they  are  buy- 
ing now,  only  they  would  know  what  they  are  getting.  I do  not 


74 


AMENDMENT  TO  PURE-FOOD  LAW. 


think  it  would  make  any  difference,  Senator,  in  regard  to  the 
purchase. 

Senator  O’Gorman.  Would  the  extra  labor  required  in  the  market- 
ing and  branding  and  weighing  of  these  small  packages  which  are 
now  sold  for  5 and  10  cents  ultimately  impose  a cost  which  the  con- 
sumer would  have  to  bear  ? 

Mr.  Green.  I should  think  not.  I will  tell  you  why.  [Laughter.] 
Now,  wait.  It  is  all  right  to  laugh.  You  can  print  these  labels  by 
the  millions.  It  is  all  right  to  laugh.  I used  to  think  so.  I went 
down  to  St.  Louis  the  other  day  and  went  into  the  sirup  and  molasses 
factory,  and  to  my  astonishment  I saw  those  cans  come  around  auto- 
matically, and  when  there  was  a certain  amount — every  can  was 
weighed — and  it  was  shut  off  like  that  [indicating] . The  machinery 
probably  cost  money,  and  the  weighing  after  the  machinery  was  put 
in  there  cost  nothing. 

Senator  O’Gorman.  Let  me  ask  you  right  here,  you  seem  to  be 
very  well  informed  on  this  subject— — 

Mr.  Green.  Well,  I have  tried  honestly,  Senator,  to  inform  myself 
correctly. 

Senator  O’Gorman.  Do  you  think  that  those  who  recommend  this 
5 and  10  cent  exemption  have  any - purpose  to  serve  other  than  the 
one  that  is  indicated  in  the  hearing  ? 

Mr.  Green.  Oh,  certainly  not.  I think  that  they  are  absolutely 
just  and  honest  in  their  contentions,  but  unless,  Senator,  there  is 
some  provision  made  for  something  of  that  kind  and  the  10  cents 
does  not  apply  to  the  general  trade,  or  rather  if  the  10  cents  does 
apply  to  the  general  trade,  it  will  practically  make  the  bill  ineffective. 

Senator  O’Gorman.  That  is,  if  you  extend  the  10-cent  package? 

Mr.  Green.  Yes.  There  is  so  much  that  goes  to  the  consumer  in 
the  10-cent  packages.  I mean,  now,  in  the  grocery  store — I am  talking 
for  the  grocer. 

Senator  O’Gorman.  Yes. 

Mr.  Green.  There  is  so  much  that  goes  to  the  consumer  in  the 
10-cent  packages  that  it  would  practically  make  the  bill  null  as  far  as 
this  effect  is  concerned.  The  5-cent  packages — I have  sold  thousands 
and  thousands  of  those  packages.  We  used  to  get  a quarter  of  a 
pound  in  those  packages.  I do  not  know  but  there  is  a quarter  of  a 
pound  in  them  now.  There  may  be,  and  I do  not  know  of  any  rea- 
son why  there  should  not  be.  I presume  those  are  filled  by  machinery. 
I do  not  know.  Are  they  filled  by  machinery,  Mr.  McCormick  ? 

Mr.  McCormick.  It  is  impossible  to  fill  bv  machinery  anything 
of  that  kind. 

Mr.  Green.  Then,  it  is  not  filled  by  machinery  ? 

Mr.  McCormick.  It  is  impossible  to  fill  an  article  like  shrub  sage 
by  machinery. 

Senator  O’Gorman.  Are  some  of  them  filled  by  machinery  ? 

Mr.  McCormick.  Yes;  some  of  them  are. 

Senator  O’Gorman.  What  goods  do  you  fill  by  machinery? 

Mr.  McCormick.  You  can  fill  a grain  pepper  that  runs  freely, 
but  that  machinery  costs  $3,500  and  $75  a month  royalty,  and  if  we 
are  going  to  keep  out  our  small  manufacturers  and  younger  manu- 
facturers, gentlemen,  that  provision  will  do  it.  I am  able  to  stand 
it,  because  I am  one  of  the  large  owners,  but  I was  small  a year  or 
two  ago — 20  years  ago. 


AMENDMENT  TO  PUEE-FOOD  LAW. 


75 


Senator  O’Gorman.  That  holds  out  encouragement  for  every  small 
dealer.  He  may  become  a large  one. 

Mr.  McCormick.  I am  looking  at  it,  and  I believe  Brother  Green 
is  looking  at  it  also,  from  a broad  standpoint.  We  have  got  to  look 
at  it  sometimes  for  other  reasons  than  dollars  and  cents. 

Senator  O’Gorman.  The  only  consideration  with  respect  to  this 
legislation  is  how  to  best  protect  the  consumer,  the  purchaser  of 
articles  that  are  sold  in  the  stores  throughout  the  country. 

Mr.  Green.  That  is  the  only  consideration,  Senator,  that  we  have 
in  our  minds. 

Senator  Pomerene.  You  referred  to  rolled  oats  a moment  ago. 

Mr.  Green.  Yes. 

Senator  Pomerene.  And  said  that  the  packages  had  been  reduced 
from  2 pounds  to  1 pound  and  6 ounces. 

Mr.  Green.  About  that. 

Senator  Pomerene.  That  would  be  a reduction  of  10  ounces. 
Did  it  still  appear  to  be  a 2-pound  package? 

Mr.  Green.  Apparently  it  looked  about  the  same.  You  can  not 
tell  the  difference  when  you  do  not  see  the  two  packages  together. 

Senator  O’Gorman.  This  marking  on  the  cereal  packages  requir- 
ing the  weight  would  lead  to  very  generous  rivalry  and  competition 
among  the  producers  necessarily,  would  it  not? 

Mr.  Green.  In  marking  the  weight  on  the  box? 

Senator  O’Gorman.  Yes. 

Mr.  Green.  It  might.  One  manufacturer  might  want  to  put  in 
more  than  the  other.  I do  not  know.  I do  not  think  that  competition 
among  the  manufacturers  is  any  less  than  it  is  among  the  retailers. 

Senator  Jackson.  Mr.  Green,  you  said  that  the  package  business 
has  come  to  stay. 

Mr.  Green.  There  is  no  question  about  that. 

Senator  Jackson.  It  seems  to  be  popular — the  5 and  10  cent  pack- 
ages. Are  there  not  conditions  which  might  arise  in  the  cost  of  the 
raw  material  wrhere  it  would  be  absolutely  necessary  for  the  manu- 
facturer to  justly  vary  the  weight  of  his  packages  from  time  to  time 
in  order  that  the  retailer  could  sell  them  for  10  cents? 

Senator  O’Gorman.  That  would  be  true  as  to  all  the  manufactures, 
if  that  condition  affected  one  it  would  affect  all. 

Senator  Pomerene.  Let  me  ask  you  this  question  to  get  your 
thought  about  it:  Suppose  we  have  a pound  package  of  cereal.  We 
all  recognize  the  fact,  I think,  that  there  may  be  variations,  and 
honest  variations,  in  those  packages? 

Mr.  Green.  Yes. 

Senator  Pomerene.  What  would  be  a reasonable  variation  in 
weight,  in  your  judgment? 

Mr.  Green.  We  had  two  or  three  boxes  of  corn  flakes.  That  is 
a very  popular  article  just  at  the  present  time.  One  had  been  kept 
in  Colorado,  and  one  had  been  kept  in  Boston,  and  the  difference 
in  those  two  packages,  put  up  with  the  same  amount  in  the  package, 
was,  I think,  something  like  4-^  ounces,  if  I remember  right.  How- 
ever, whatever  it  is,  the  testimony  before  the  committee  in  the  House 
some  years  ago  shows  that. 

The  Acting  Chairman.  Was  that  a pound  package? 

Mr.  Green.  No;  it  was  a 10-cent  package. 

Senator  Pomerene.  That  is  an  extreme  case? 


76 


AMENDMENT  TO  PUEE-FOOD  LAW. 


Mr.  Green.  That  is  an  extreme  case. 

Senator  Pomerene.  My  question  was,  what  would  be  a reasonable 
variation?  In  the  trade  what  would  be  regarded  as  a reasonable 
variation  ? 

Mr.  Green.  I do  not  think  that  the  2 ounces  at  any  time,  either  in 
a dry  or  damp  season — you  know  rolled  oats  will  collect  damp, 
and,  they  will  collect  it  rapidly,  and  then  again,  they  may  throw  it 
off  just  as  rapidly. 

Senator  O’Gorman.  What  is  the  price  of  oatmeal  in  large  packages 
now  ? 

Mr.  Green.  In  bulk?  Could  you  tell  us,  Mr.  Beckman? 

Mr.  Beckman.  No. 

Mr.  Green.  Well,  approximately,  about  3 cents  a pound. 

Senator  Pomerene.  Let  me  ask  you  a further  question.  You  have 
spoken  of  a variation  of  weights  in  Boston  and  in  Colorado.  Let  us 
go  to  the  factory  where  these  packages  are  put  up.  What  would  be 
a reasonable  variation  at  the  point  of  packing? 

Mr.  Green.  I do  not  think  there  would  be  very  much,  if  any.  I 
think  it  would  be  so  slight  it  could  hardly  be  considered.  The  de- 
partment would  immediately  take  care  of  that.  There  would  not  be 
much  of  any  question  about  that  at  the  factory. 

The  Acting  Chairman.  Gentlemen,  we  are  very  much  obliged  to 
you.  The  committee  will  now  hold  an  executive  session  to  consider 
this  matter. 

Thereupon  the  committee  adjourned. 


X 


